SA(MD)No.73 of 2011:
1.Bagavathi Asari (Died) Arunachalam Asari (Died)
2.Chellammal
3.B.Madasamy
4.B.Muthulakshmi
5.B.Thangammal :Appellants /Appellants/ Plaintiffs
-Vs-
1.Lekshmi
2.Subramonian (Died)
3.Kumar
4.Monickam
5.Muthu
6.Thangammal
7.Mariammal
8.Rajammal
9.Sasikumar
10.Latha
11.Raja
12.Suresh
13.Kannan : Respondents/ Respondents / Defendants (Appellants 3 to 5 brought on record as legal representatives of the deceased 1st appellant vide order dated 01.02.2017 made in MP(MD)No.1 of 2014 in S.A(MD)No.73 of 2011). (Respondents 8 to 13 brought on record as legal representatives of the deceased second respondent vide order dated 22.03.2016 made in MP(MD)Nos.1 to 4 of 2011 in S.A(MD)No.73 of 2011). http://www.judis.nic.in 3 Prayer: Second Appeal filed under Section 100 of the Code of the Civil Procedure, against the judgment and decree made in A.S.No.26 of 2008, dated 26.10.2009 by the Principal Sub-Court, Nagercoil confirming the judgment and decree made in O.S.No. 14 of 2006 on the file of the I Additional District Munsif Court, Nagercoil, dated 02.01.2008.
S.A.(MD)No.105 of 2004 had been filed by the defendants in O.S.No.783 of 1997 on the file of the Principal District Munsif Court, Nagercoil. O.S.No.783 of 1997 had been filed by one Subramonian Asari, S/o. Arunachalam Asari against his brother Bagavathi Asari and his son Arunachalam Asari, seeking a declaration with respect to the title in the plaint schedule property by adverse possession and a declaration of a sale deed executed by the first defendant in favour of the second defendant on 28.02.1997 as null and void and for permanent injunction restraining the defendants from disturbing the plaintiff's peaceful possession over the plaint schedule property. http://www.judis.nic.in 4
2.The plaint schedule property was land and building bearing D.No.20/12 in Suchindrum Town Panchayat in R.S.No. 254/11, Old S.No.590/118 measuring about 1 ½ cents equivalent to 653.4 sq.ft. The suit was decreed only with respect to injunction and the declarative reliefs were rejected. As against the same, the plaintiff Subramonian Asari filed A.S.No.136 of 2003. This came up for consideration before the I Additional Subordinate Judge, Nagercoil, who, by judgment dated 28.04.2004, allowed the appeal. As against the same, the defendants Bagavathi Asari and his son Arunachalam Asari had filed the second appeal in S.A.(MD)No.105 of 2004. Pending the second appeal, Bagavathi Asari died and his legal representatives were brought on record as appellants 3-6. Pending the second appeal, Subramonian Asari also died and his legal representatives were also brought on record as respondents 2-7.
3.This second appeal was admitted on the following substantial questions of law:
“1.Whether the lower appellate Court is correct in granting a decree for declaration of title especially when it held that the plaintiff has not perfected title by adverse possession?
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2.Is not the admission of the PW-1, admitting that he got the property by “Oral Gift” will not suit the plaintiff's inconsistent pleadings?
3.In deciding the questions of ownership of a property, can the appellate Court revise the findings of the trial Court by accepting the oral evidence and rejecting the documentary evidence?
4.Whether the lower court is correct in granting a decree especially when it held that the property absolutely belongs to the first defendant's mother?” S.A.(MD)No.73 of 2011:-
4.S.A.(MD)No.73 of 2011 had been filed by the plaintiffs in O.S.No.14 of 2006 on the file of the Principal District Munsif, Nagercoil. O.S.No.14 of 2006 had been filed by Bhagavathi Asari and his son Arunchalam Asari against 1)Lekshmi 2)Subramsniam
3)Kumar 4)Monickam 5)Muthu 6)Thangammal 7)Mariammal. The said suit had been filed seeking partition and separate possession of the second plaintiff 1/2 share over the suit schedule property. The suit schedule property was land and building in bearing D.No.20/12 in R.S.No.254/11, Old S.No. 490/118 in Suchindrum Town Panchayat, measuring about 1 ½ cents equivalent to 653.4 sq.ft.
5.The said suit was dismissed by judgment dated 02.01.2008. As against the said dismissal of the suit, the http://www.judis.nic.in 6 plaintiffs filed A.S.No.26 of 2008. A.S.No.26 of 2008 came up for consideration before the Principal Subordinate Judge, Nagercoil, who, by judgment dated 26.10.2008, had dismissed the appeal. As against the said dismissal, the second appeal had been filed. Pending the second appeal, Bhagavathi Asasri died and his legal representatives were brought on record as appellants 3 to 5. Pending the second appeal, Subramonian, second respondent, also died and his legal representatives were also brought on record.
6.This second appeal was admitted on the following substantial question of law:
“Whether the lower appellate Court has rendered a perverse findings to the effect that in A.S.No.136 of 2003 on the file of the Sub-Court, Nagercoil, plea of adverse possession made by the second respondent herein/ second defendant was upheld, whereas, the findings of the appellate Court in the said appeal is to the contrary?”
7.Since the property involved in both the suit is same and since both the parties, who contested a rival claim over the said property are also same, to give effective disposal, both the second appeals are taken up for consideration together.
http://www.judis.nic.in 7 O.S.No.783 of 1997:-
8.The plaintiff, Subramonian Asari was the son of Arunachalam Asari. Arunachalam Asari had two wives. The plaintiff was a son through the second wife and the first defendant, Bhagavathi Asari was a son through the first wife. The plaintiff claimed that he and his mother were put in possession of the suit property by an oral gift. The house was renovated by the plaintiff and he had been in a continuous possession. He claimed that his possession was hostile and adverse to that of the defendants. As stated above, the first defendant, Bhagavathi Asari is the son of the first wife of Arunachalam Asari. The second defendant, Arunachalam Asari was the son of the first defendant. The plaintiff claimed that the defendants had created a document of sale on 28.02.1997 and the property was conveyed by the first defendant to the second defendant. The plaintiff claimed that the said document was null and void and consequently, he instituted the suit seeking declaration of title through adverse possession and for a declaration that the sale deed is null and void and for permanent injunction to protect his possession.
9.In the written statement filed by the defendants, it was http://www.judis.nic.in 8 stated that the father, Arunachalam Asari actually had three wives. The first wife Malaiyamma died during delivery and the child also died. Then Arunachalam Asari married the mother of the first defendant, Thangammal, as his second wife. Two children were born, namely, the first defendant and another child Lekshmi. Thangammal died in the year 1933. Arunachalam Asari then married the plaintiffs' mother Bhagavathi Ammal, as his third wife. She had begotten six children, namely, Subramonian Asari / plaintiff, Kumar, Monickam, Muthu, Thangammal and Mariammal.
10.With respect to the suit property, it was stated that it originally belonged to one Chidambarathanu Achari S/o.Esakkimadan Achari, who sold the property to one Peer Mohammed Sahib, S/o.Sheik Mydeen. Mother of the first defendant, Thangammal, had purchased it by a registered Document No.808 on the file the Edalakudy Sub Registrar Office. She also expired. Consequently, the property succeeded to the first defendant as legal representative. It was admitted that the plaintiff and his father Arunachalam Asari and others resided in the suit property. However, it was also claimed that the defendants also resided in the suit property till the year http://www.judis.nic.in 9 1986. Permission was granted to the first plaintiff to reside in the property, till he found alternative arrangement. It was specifically denied that the plaintiffs made any renovation over the suit property. It had been claimed that taking advantage of the permission granted, the plaintiffs had mutated the revenue records to their names. It had been claimed that the plaintiffs had not obtained any title over the property by adverse possession. The possession was not hostile to that of first defendant, rather the possession was permissive in nature. It was claimed that the suit should be dismissed.
11.This suit came up for consideration before the Principal District Munsif, Nagercoil, who, on consideration of the pleadings, framed the following issues:
1)Whether the plaintiffs are entitled to the suit reliefs?
2)Whether the suit property belonged to the father of the plaintiffs?
3)Whether the plaintiffs perfected title by adverse possession?
4)To what other reliefs, plaintiffs are entitled to? http://www.judis.nic.in 10
12.During the trial, the plaintiffs examined five witnesses and marked 9 documents. The defendants examined two witness and marked six documents. On consideration of the oral and documentary evidences, the learned Principal District Munsif, Nagercoil, had dismissed the suit with respect to the declarative reliefs of title and to declare the sale deed as null and void, but, granted the relief of injunction from interfering with the peaceful possession. As against the same, the plaintiffs filed A.S.No.136 of 2003. This appeal came up for consideration before the I Additional Subordinate Judge, Nagercoil, who by judgment dated 28.04.2004, allowed the appeal and granted the relief of declaration. As against this, the defendants in the suit had filed S.A.(MD)No.105 of 2004.
O.S.No.14 of 2006:-
13.O.S.No.14 of 2006 had been filed by Bhagavathi Asari and his son Arunachala Asari seeking partition and separate possession of 1/2 share over the plaint schedule property. In the plaint, it had been stated that the father of the first plaintiff, Arunachalam Asari originally married one Malaiyamma, who died. Then he married Thangammal, as his second wife and that the first plaintiff and the first defendant were born through the http://www.judis.nic.in 11 said wedlock. Thereafter, Arunachalam Asari married one Bhagavathiammal as his third wife and defendants 2-7 were born to them.
14.It had been stated that the plaint schedule property belonged to one Chidambarathanu Achari S/o.Esakkimadan Achari, who sold the property to one Peer Mohammed Sahib, S/o.Sheik Mydeen. From whom, the first plaintiff's mother, Thangammal, purchased the property. The first plaintiff's mother died in the year 1934. The property was, thereafter, in the enjoyment of the first plaintiff and also of the defendants along with the father. The first defendant married in the year 1950 and she separated from the joint family. Similarly, defendants 3 to 6 also married and separated from the joint family. The first plaintiff and the second defendant Subramonian Asari were living jointly in the suit property along with their family. Thereafter, the father died in the year 1981. The mother of the defendants 2 to 7 also expired in 1985. The first plaintiff claimed that the property belonged to him absolutely. He permitted the second defendant to reside in the house. Thereafter, on 28.02.1997, the first plaintiff sold the property to the second plaintiff. The revenue records were also mutated to the name of http://www.judis.nic.in 12 the second plaintiff.
15.The second defendant, in the meanwhile, filed O.S.No. 783 of 1997 seeking declaration of title. The suit was partly decreed and dismissed with respect to the declarative relief. In the appeal, declarative relief was granted. Subsequently, the plaintiffs had filed S.A(MD)No.105 of 2004 before the High Court. In the judgment in O.S.No.783 of 1997, it had been specifically mentioned that the plaintiffs herein should seek declarative relief in a separate possession. In the judgment, it was stated that the second plaintiff and the first defendant were co-owners and each entitled for 1/2 share in the suit property. Under these circumstances, the suit had been filed seeking partition and separate possession.
16.In the written statement filed by the second defendant, the sale made by the first plaintiff to the second plaintiff was specifically denied. It was claimed that the suit should be dismissed, since the plaintiffs had no title or possession of the suit property. It was also stated that already a second appeal with respect to the suit property is pending before the High Court.
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17.On the basis of the pleadings, the I Additional District Munsif, Nageroil framed the following issues:
1)Whether the second plaintiff is entitled to 1/2 share in the suit property?
2)Whether the plaintiffs are entitled to separate possession of 1/2 share in the suit property?
3)to what other relief, plaintiffs are entitled to?
18.The first plaintiff was examined as PW-1 and he marked Ex-P1 to Ex-P4. The defendants did not let in any oral or documentary evidence. On consideration of evidence, the suit was dismissed. As against the same, A.S.No.26 of 2008 was filed. The appeal was also dismissed and the decree and judgment of the trial Court was confirmed. As against the same, S.A.(MD)No. 73 of 2011 had been filed.
19.In both the appeals, the respondents did not enter appearance. Paper publication was effected and they did not choose to participate in the judicial proceedings. S.A(MD)No.105 of 2004 had been pending for the past 14 years and S.A.(MD)No. 73 of 2011 had been pending for the past 7 years. http://www.judis.nic.in 14
20.Heard the learned Counsel appearing for the appellants.
21.The father of the first appellant and the first respondent was one Arunachalam Asari. He originally married Malayamma. She died. He, thereafter, married Thangammal. She was the owner of the suit property. She also died, leaving behind the first appellant and her daughter, who had separated from the family. The respondents are the children through the third wife of Arunachalam Asari. The contesting respondent was Subramonian Asari, who also died pending the second appeal and his legal representative had been brought on record. The suit property, as stated above, belonged to Thangamamal. She died in the year 1933. The following family tree would be useful for consideration:
Arunachamal Asari (Died) Malaiyamma (died) Thangammal Bagavathiammal (1st wife) (2nd Wife) (3rd Wife)
1.Bagavathi 1.Subramonian Asari
2.Lekshmi 2.Kumar
3.Monickam
4.Muthu
5.Thangammal
6.Mariammal http://www.judis.nic.in 15
22.At the time, when Thangammal died, the property devolved into three equivalent parts to her husband Arunachala Asari, son Bhagavathi Asari and daughter Lekshmi. On the death of Arunachala Asari, his 1/3 share further devolved on to his two children born through Thangammal and also to the defendants who were born through Bhagavathi Ammal, third wife. Consequently, each of the children got 1/24 share from his 1/3 share. However, the first appellant already had an existing 1/3 share. Consequently, his share evolved to 9/24 share. Each of the children born through Bhagavathi Ammal would get 1/24 share. The other sister would get 9/24 share. The sharers would get share in the following manner:
1)Bhagavathi Asari -- 9/24
2) Lakshmi -- 9/24
3)Subramonian Asari --1/24
4)Kumar --1/24
5)Monickam --1/24
6)Muthu --1/24
7)Thangammal --1/24
8)Mariammal --1/24
23.In view of the above facts, this Court has to necessarily interfere with the judgment and decree passed by both the Courts below and give a quietus to the entire issue. The branches would get share in the following manner:
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1)Bhagavathi Asari -- 9/24
2) Lakshmi -- 9/24
3)Subramonian Asari --1/24
4)Kumar --1/24
5)Monickam --1/24
6)Muthu --1/24
7)Thangammal --1/24
8)Mariammal --1/24
24.These second appeals are partly allowed on the above terms. O.S.No.783 of 1997 is dismissed in view of the above reasons and O.S.No.14 of 2006 is partly decreed recording the above shares. No costs.
Index : Yes 29.08.2018 Internet : Yes cmr To
1.The I Additional Subordinate Judge, Nagercoil.
2.The Principal District Munsif, Nagercoil.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 17 To
1.The I Additional Subordinate Judge, Nagercoil.
2.The Principal District Munsif, Nagercoil.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 18 C.V.KARTHIKEYAN, J.
cmr Pre-Delivery Judgment made in Second Appeal(MD)Nos.105 of 2004 and 73 of 2011 29.08.2018 http://www.judis.nic.in