The appeal has been preferred by the defendants 1 to 4 and 6 to 9 challenging the judgment and decree of the trial Court, wherein the Court below has granted a decree for declaration that the plaintiff was entitled to B and C schedule properties, possession and for mandatory injunction.
2. The case of the plaintiff is that the entire A schedule properties mentioned in the plaint belongs to Govindareddiar-I. The said Govindareddiar-I had two sons by name Govindareddiar-II and Venkatasamyreddiar. Govindareddiar- II and Venkatasamyreddiar divided the A schedule properties. Thereafter the B and C schedule properties have been allotted to Venkatasamyreddiar. The B and C schedule properties are part and parcel of A schedule properties. What is owned by Govindareddiar after oral partition is the other properties excluding B and C schedule properties. Govindareddiar-II had two sons who are the defendants 1 and 5. The defendants 2 to 4 are the sons of first defendant. Similarly Venkatasamyreddiar had two sons. The first son G.V.Ramasamy Reddiar died issue less. The second son Gnanappa Reddiar had two sons by name N.Ovi Reddiar and Ramasamy alias Asaithambi. The said Ramasamy alias Asaithambi is P.W.5. The plaintiff purchased the B schedule property from G.V.Ramasamy Reddiar who is the son of Venkatasamyreddiar. Similarly he purchased C schedule property from Ramsamy alias Asaithambi. The above said properties have been purchased under Ex.A9 dated 20.12.1974 and Ex.A10 dated 21.12.1974 by registered sale deeds. In view of the interference by the defendants who are admittedly descendants of Govindareddiar-II, the plaintiff was constrained to file a suit for declaration, possession and mandatory injunction. The suit has been filed on the basis of Exs.A9 and A10. However an alternative plea is also sought for seeking partition and separate possession based upon the above said document, if the Court comes to the conclusion that the partition has not been effected.
3. The case of the defendants in a nut shell is as follows:
The defendants do not dispute the genealogy produced by the plaintiff. However, it is the specific case of the defendants that in pursuant to the oral partition between the Govindareddiar-II and Venkatasamyreddiar the entire suit properties mentioned in the A schedule properties have been allotted to the defendants. The defendants have been in enjoyment and possession of suit properties as the owners. The defendants have also perfected their title by adverse possession. The execution of Exs.A9 and A10 are not admitted. The said documents are sham and nominal and they have not been given effect to. The above said document have been created in view of the dispute which has arisen between the third defendant and P.W.5 during the elections. Hence the defendants prayed for the dismissal of the suit.
4. On behalf of the plaintiff Exs.A1 to A41 have been marked and five witnesses have been examined. The plaintiff has examined himself as P.W.1. On behalf of the defendants Exs.B1 to B25 which are kist receipts for the suit properties have been marked. The defendants have examined three witnesses in D.W.1 to D.W.3. the third defendant has examined himself as a witness.
5. The trial Court after considering the oral and documentary evidence decreed the suit for declaration, possession and mandatory injunction. The decree for mandatory injunction has been granted on the ground that the third defendant has put up a construction of gas plant over the suit properties.
6. The plaintiff has filed the suit based upon the two sale deeds executed under Exs.A9 and A10. Ex.A9 has been executed by G.V.Ramasamy Reddiar who is the son of Venkatasamyreddiar. Under the sale deed dated 20.12.1974. The lands covered under said sale deed are for an extent of 15.34 cents in Survey Nos.56/4 and 56/5. It also covers an extent of 2 cents in Survey Nos.56/2 and 56/3. The plaintiff has purchased the lands covered under Ex.A10 dated 21.12.1974 situated in Survey Nos.56/4 and 56/5 with an extent of 7-5/8 cents in Survey Nos.56/2 and 56/3 with a extent of 1 cent from P.W.5, Ramasamy alias Asaithambi. The above said two sale deeds speaks about the partition effected earlier.
7. The plaintiff has also relied upon Ex.A3 dated 21.05.1960. Ex.A3 is a mortgage deed executed by first defendant on his own behalf and also on behalf of D2 to D4. Ex.A4 is the sale deed in favour of sister of D3 pertaining to a portion of the suit properties. In both Exs.A3 and A4 one of the boundary has been shown as that of the lands belonging to Venkatasamyreddiar. Similarly Ex.A35 is the registered mortgage executed by Ovi Reddiar who is the son of Gnanappa Reddiar in favour of the third defendant. Ex.A36 is the sale deed executed by the said Ovi Reddiar son of Gnanappa Reddiar in favour of D3. It is also not in dispute that the land covered under Exs.A35 and A36 forms part of A schedule properties. Apart form that Exs.B1 to B6, B9 to B13 and B15 to B25 also refer the name of Venkatasamyreddiar as one of the Pattathar of the suit properties. Exs.B1 to B25 are nothing but the kist receipts produced by the defendants.
8. The learned counsel appearing for the appellants submitted that the plea of oral partition has not been proved by the plaintiff. According to the learned counsel the onus is on the plaintiff to prove the factum of oral partition. It is further submitted that a perusal of Exs.B1 to B3 would establish the fact that the entire suit properties mentioned in the A schedule properties belongs to the defendants and they have been enjoying the same as the owners. It is further submitted that even P.W.5 has deposed in favour of the defendants. The learned counsel has also submitted that P.W.1 in his evidence has stated that he has not discharged the mortgage as mentioned in Ex.A9 and hence in the absence of the consideration, the suit cannot be decreed based upon Ex.A9. In support of his contention the learned counsel also relied upon the judgment reported in 2009 (4) SCC 193 (Kaliaperumal Vs. Rajagopal and another), to contend that a mere sale will not amount to transfer of title.
9. The learned counsel has also submitted that there is absolutely no evidence to show that the plaintiff has been enjoying the suit property. There is also no further evidence to show about the actual partition between the parties. Even a perusal of Exs.C1 and C2 which are the report and the plan of the Commissioner appointed by the Court below, there is no indication about the separate enjoyment of the suit properties. Hence the learned counsel submitted that in the absence of any such evidence the suit ought to have been dismissed.
10. Per contra, the learned counsel for the respondent submitted that the suit has been filed based upon title. The plaintiff has purchased the suit properties mentioned in schedule B and C by registered sale deeds under Exs.A9 and A10. The question of consideration is not the subject matter of the suit, since the vendors of the plaintiff have not chosen to challenge the same. Exs.A9 and A10 also clearly indicate about the earlier partition. According to the learned counsel under Ex.A9, G.V.Ramasamy Reddiar has sold his share in Survey Nos.56/2 to 56/5 to the plaintiff. Similarly in Ex.A10 the C schedule properties have been purchased by the plaintiff from P.W.5 It is further submitted that even in the written statement the third defendant has admitted about the earlier partition. Moreover in view of Exs.A35 and A36, the defendants cannot be permitted to contend either about the title or about the exclusive possession of A schedule properties. Hence the learned counsel prayed for the dismissal of the suit.
11. As rightly contended by the learned counsel for the plaintiff Exs.A9 and A10 are registered sale deed executed in favour of the plaintiff. The question whether the said documents are sham and nominal or otherwise cannot be raised by the defendants who are not the vendors of the plaintiff. It is not the case of the vendors of the plaintiff that the consideration has not been paid by the plaintiff. Therefore, this Court finds that the contention raised by the learned counsel for the appellants that Exs.A9 and A10 cannot be looked into does not merit acceptance.
12. In the present case the suit has been filed on the ground that there was a oral partition between the sons of Govindareddiar-I. It is also not denied specifically by the defendants that there was no partition between Govindareddiar-II and Venkatasamyreddiar. On the contrary, it is specific case of the defendants that in pursuant to such a partition the entire A schedule properties have allotted to the defendants. However, no evidence either oral or documentary has been produced in support of such a contention. On the contrary, the plaintiff has relied upon Exs.A3 and A4. The above said two documents have been executed by the descendants of Govindareddiar-Ii. In the said documents one of the boundaries has been shown as that of the land belonging to Venkatasamyreddiar. It is also not the case of the defendants that from Venkatasamyreddiar they got the title. Therefore, the said contention of the defendants cannot be accepted.
13. Further it is seen that under Ex.A35 Ovi Reddiar who is the son of Gnanappa Reddiar has executed a registered mortgage deed in favour of the third defendant. The said document itself indicates that the property covered therein is a part of A schedule properties. Further under Ex.A36 the third defendant has purchased a portion of A schedule properties from Ovi Reddiar. Therefore, as rightly contended by the learned counsel for the plaintiff the above said documents would clearly prove that the stand taken by the defendants that the entire A schedule properties belong to the defendants in pursuant to the oral partition is absolutely untrue.
14. It is a well settled principle of law that under
Section 91 and
92 of Indian Evidence Act, a party to a document cannot be allowed to give evidence contrary to the same. There is also no explanation from the defendants under what circumstances Exs.A35 and A36 have been executed. Therefore this Court is of the opinion that the case of the defendants that the entire A schedule properties belong to them cannot be accepted.
15. In so far as the contention of the learned counsel about the execution of Exs.A9 and A10 by relying upon the judgment reported in 2009 (4) SCC 193 (Kaliaperumal Vs. Rajagopal and another) is concerned, a reading of the said judgment would show that in the said case the dispute was between the vendor and the purchaser. Further the Hon'ble Supreme Court was pleased to hold that the vendor has got every right to sue the purchaser for the unpaid consideration not withstanding the fact the registered sale deed. However, in the present case no suit has been filed by the vendor of the plaintiff and hence the said contention also deserves to be rejected.
16. However, the learned counsel for the appellants submitted that there is absolutely no evidence to show that the plaintiff has been enjoying the B and C schedule properties exclusively. According to the learned counsel in such a case even assuming the plaintiff has got the title under Exs.A9 and A10, the Court below ought to have granted only a decree for partition and separate possession instead of granting a decree for declaration, possession and mandatory injunction. This Court finds that there is considerable force in the said submission made by the learned counsel for the appellants. Even though in the present case mutation has been done in pursuant to the sale deeds under Exs.A9 and A10 and kist receipts also show the name of the plaintiff, there is no evidence to show that they have been enjoying the B and C schedule properties exclusively. The above said documents would show only the common enjoyment and no exclusive enjoyment. No doubt this Court has already observed that the plaintiff has got title to the properties mentioned in B and C schedule properties of the suit. Even a perusal of the Commissioner's report would show that there is no indication of exclusive possession.
17. Further it is the case of the plaintiff himself that before the Commissioner's inspection, the defendants have removed the boundaries and made it look as if there was demarcation. Therefore, this Court is of the opinion that under those factual position no useful purpose would be served by granting a decree for possession and mandatory injunction. Hence in such a situation the Court below ought to have granted the decree for partition and separate possession along with the decree for declaration. Once the plaintiff is entitled to have a declaration, he becomes a co-owner, being entitled to get a decree for partition. Therefore this Court is of the opinion that the judgment and decree of the Court below is liable to be modified from one of declaration, possession and mandatory injunction to that of declaration, partition and separate possession.
18. Hence the judgment and decree of the trial Court is hereby modified by granting a decree for declaration and a preliminary decree for partition and separate possession of B and C schedule properties. The trial Court is also directed to complete the final decree proceeding within a period of six months from the date of application filed by the plaintiff. With this observation, the appeal is allowed to the extent indicated above. No costs. Consequently, the connected miscellaneous petition is also closed.
cs To The Principal Sub Court, Madurai.