This Appeal Suit has been filed against the Judgment and Decree passed by the learned Principal Subordinate Judge, Thiruchirappalli, in O.S.No.308 of 1986, dated 03.04.2000.
2. The plaintiff in the suit in O.S.No.308 of 1986 on the file of the learned Principal Subordinate Judge, Thiruchirappalli is the appellant in the above appeal. The appellant filed the suit in O.S.No.308 of 1986 for directing the 13th defendant to execute the sale deed in respect of 1/5th share in the suit 'A' schedule property in favour of the plaintiff in terms of the sale agreement, dated 30.10.1985 and for partition and separate possession of his 1/5th share in 'A' schedule property in the suit and also for directing the defendants to partition and separate possession in 1/3rd share in 'B' schedule property and for other consequential reliefs.
3. The suit 'A' schedule property was a vacant site measuring an extent of 1 Acre 18 cents in Survey No.34, situated in Town Cantonment, Trichy Taluk, Trichy District. The suit 'B' schedule property is a superstructure available in the suit 'A' schedule property.
4. The brief case of the appellant/plaintiff is as follows:- The plaintiff and the first defendant are brothers and that the second defendant is the co-brother of the first defendant. Third defendant is the wife of the first defendant. Fourth defendant is the son of the first defendant. The defendants 5 to 7 are the daughters of the first defendant. Eighth defendant is the wife of the second defendant. The defendants 19 and 20 are the daughters of the second defendant. Ninth defendant is the son-in- law of the second defendant. The defendants 14 to 17 are the sons of the thirteenth defendant. The defendants 13 to 17 are the members of the undivided joint family for which the thirteenth defendant is the Manager.
5. The suit property described in the suit 'A' schedule property belonged to the joint family consisting of the defendants 13 to 17. The plaintiff along with the defendants 1 and 2 were running Bus Transport business under the name and style of P.N.Roadways and Nallappa Roadways. The transport business was carried on in partnership. The business was operated in the premises which was taken on lease from the thirteenth defendant. The lease was granted by the thirteenth defendant who managed the family consisting of the defendants 13 to 17. Since the business was being run by the plaintiff and the defendants 1 and 2 from the year 1971, the partnership firm purchased buses from the previous owners, who were the proprietors of M/s.Prasanna Transport. The previous lessee was also the person who was carrying on business in the name of Prasanna Bus Transport. The said Prasanna Bus Transport was permitted to put up superstructure in the suit 'A' schedule property at their cost and the superstructure put up, was described in 'B' schedule. After transferring the business to the hands of the plaintiff and the defendants 1 and 2, the business was carried on in the name of P.N.Roadways and Nallappa Roadways. The superstructure put up in 'A' schedule property was the exclusive property of the partnership firm. There was a partition between the plaintiff and the defendants 1 and 2 in the year 1978 whereby the plaintiff was allotted 2 buses and the defendants 1 and 2 were allotted 2 buses and one bus respectively. Thereafter, the plaintiff sold the buses allotted to him. The leasehold right in respect of the 'A' schedule property and the co-ownership over the 'B' schedule property was continued with the plaintiff. While so the thirteenth defendant was requesting the plaintiff to purchase the entire vacant site, since there was a dispute in respect of the property in O.S. No.282 of 1975. After the suit went in favour of the thirteenth defendant, the thirteenth defendant decided to sell the suit 'A' schedule property to the plaintiff. On 30.10.1985, the thirteenth defendant executed a sale agreement in favour of the plaintiff in respect of his undivided 1/5th share in 'A' schedule property for a sum of Rs.2,50,000/-. Pursuant to the sale agreement, a sum of Rs.25,000/- was received by the thirteenth defendant as advance. However, the plaintiff came to know that the defendants 13 to 17 executed various sale deeds in the names of the defendants 1 to 12. Hence, the plaintiff was constrained to file the suit for specific performance and for partition of his 1/3rd share in respect of the suit 'B' schedule property. The first defendant filed a detailed written statement raising several grounds and the written statement was adopted by the defendants 11 and 12. The thirteenth defendant also filed an independent written statement.
6. It is the common case of the defendants that the suit agreement was false and forgery. The suit agreement was fabricated after knowing that on the date of agreement, the 13th defendant had no right to deal with the property. Since all the defendants have contended that the suit agreement was not a bonafide transaction and that it was fabricated by the plaintiff, the trial Court framed a specific issue with regard to the validity of the sale agreement, dated 30.10.1985. After considering the pleadings and evidence on both sides, the trial Court has given a categorical finding that the plaintiff had not proved the suit agreement under Ex.A.1 which was allegedly executed by the thirteenth defendant. It has been found that the genuineness of the agreement is not proved in the manner known to Law. The trial Court has given sufficient reasons for finding the genuineness of the transaction against the plaintiff. The trial Court has further found that the plaintiff had not proved his right in the suit 'B' schedule property. Since the sale deed has already been executed in favour of the defendants 1 to 12, and the right in respect of the suit 'A' schedule property was found to be in favour of the first defendant, the suit for partition in respect of the suit 'A' schedule property was also dismissed. The plaintiff had not produced sufficient materials that the suit agreement was a bonafide transaction. Even before, the present suit was filed, the defendants 13 to 17 have executed the sale deeds in respect of their shares in favour of the defendants 1 to 12. The defendants 1 to 12 have acquired the property. Since the plaintiff had not proved the genuineness of the sale agreement, the relief of specific performance was denied. The plaintiff also had not established his right as lessee in respect of 'A' schedule property. It has been categorically found that the lease in respect of the suit 'A' schedule property was not in favour of the plaintiff, but in favour of the second defendant in his individual capacity.
7. The learned counsel for the appellant pointed out that in the written statement filed by the first defendant, he has disputed the right of the plaintiff with regard to 'B' schedule property. He also referred to the written statement of the first defendant, in Paragraph-5, wherein, the first defendant has categorically claimed exclusive right over 'B' scheduled property on the ground that the 'B' schedule superstructure was transferred in the name of the first defendant and not in favour of P.N.Roadways and Nallappa Roadways, as contended by the plaintiff.
8. After referring to the specific averment in the written statement, the learned counsel for the appellant submitted that a counter claim has been made in the written statement. However, the trial Court, without giving him an opportunity by following the procedure, which are applicable to deal with the counter claim, has given a finding in favour of the first defendant.
9. Reading of the written statement filed by the first defendant only shows that they claim exclusive right over the plaint 'B' schedule property in defence. It is not necessary for a defendant, while defending the case pleaded by the plaintiff to prefer a counter claim, merely because his claim is based on an independent right. In this case, the defendant did not seek any relief as against the plaintiff. The plaintiff can be non-suited without a counter claim. Hence, the argument of the learned counsel for the appellant has no substance.
10. The only argument advanced by the learned counsel for the appellant is misconceived. Therefore, I find no merits in this appeal. The appellant/plaintiff is not entitled to claim any right over the superstructure that was available in 'A' schedule property. As against the findings of the trial Court which are on the basis of material evidence, the learned counsel for the appellant is not in a position to demonstrate before this Court as to how the Judgment of the trial Court is wrong. The learned counsel has not even attempted to challenge the findings.
11. In the above circumstances, this Court find no merits in this appeal and hence, the same is dismissed. There is no order as to costs. Consequently, connected Miscellaneous petition is closed.
To
1. The Principal Subordinate Judge, Thiruchirappalli.
2. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai..