Heard Mr.K.Hemakarthikeyan, learned counsel appearing for the appellants and Mr.P.T.S.Narendravaran, learned counsel appearing for the respondents. http://www.judis.nic.in
2.This appeal is filed against the Judgment and Decree passed in A.S.No.20 of 2 2007 dated 16.07.2009 on the file of the Subordinate Court, Usilampatti (Camp) reversing the Judgment and Decree in O.S.No.47 of 1996 dated 07.09.2006 on the file of the learned District Munsif cum Judicial Magistrate No.I, Usilampatti.
3.The appellants herein are the defendants 1, 2 and 4 and the respondents 1 to 3 herein are the plaintiffs 1 to 3 in the suit and the third defendant and the fourth plaintiff were dead. The respondents herein has filed a suit in O.S.No.47 of 1996 before the learned District Munsif cum Judicial Magistrate, Usilampatti seeking for a prayer of declaration and for permanent injunction against the defendants. The suit was dismissed by the trial Court. Against the Judgment and Decree, the respondents/plaintiffs filed an appeal in A.S.No.20 of 2007 before the learned III Additional Sub Judge, Madurai(Sub Court, Usilampatti (Camp)). The learned III Additional Sub Judge allowed the appeal by setting aside the Judgment and Decree passed by the trial Court. Against the Judgment and Decree, the appellants filed this second appeal.
4.The case of the plaintiffs is that the plaintiffs and his wife Muthu Kalichiammal purchased the property from the defendants 2 and 3 for a consideration of Rs.13,000/- (Rupees Thirteen Thousand only) on 14.05.1984. The sale deed was executed on behalf of the third defendant also. The plaintiffs were in enjoyment of the suit property and the first plaintiff gifted the property to the plaintiffs 2 to 4 on 09.05.1985.
http://www.judis.nic.in Since the second plaintiff was unmarried and other plaintiffs are minors, 3 the suit property was enjoyed by the first plaintiff himself and the first plaintiff is paying the kist also.
5.It is stated that the first defendant is the mother of the other defendants and that even if the third defendant was a minor at that time, no steps was taken by the third defendant to cancel the sale deeds within a period of three years from the date of his attaining majority and that the third defendant is 29 years old and he is not having any right to question the sale and that the defendants 1 and 2 have executed the sale deed and they cannot claim any right over the property and that the fourth defendant is the son-in-law of the first defendant and he got a sale deed from the third defendant and that sale deed was executed during the pendency of the suit. The plaintiffs are in possession of the property for more than the prescribed period. The plaintiffs are entitled for the property on the basis of adverse possession also and the suit property was to be declared as the property of the plaintiffs 2 to 4 and a permanent injunction is to be granted.
6.The case of the defendants is that the first defendant and her husband executed a settlement deed dated 22.08.1972 in favour of the defendants 2 and 3. The husband of the first respondent was an alcohol addict and he destroyed the family properties. To safeguard the interest of the minors, the settlement deed was executed in favour of Singa Perumal Thevar who is the father of the first defendant as guardian for the http://www.judis.nic.in minors defendants 2 and 3. In the settlement deed, it is clearly stated that the 4 defendants 2 and 3 should not alienate the property. The plaintiffs got a mortgage over the property on 22.04.1981 from the second defendant. At that time, age of the second defendant is only 14 years and the third defendant who is the younger brother of the second defendant was aged about 11 ½ years at that time and hence, the mortgage deed is invalid. The plaintiffs who purchased the property from minor second defendant at age of 14 years is invalid. The additional mortgage dated 23.06.1982 is invalid and the first plaintiff executed a discharge receipt after 10 years. The first plaintiff received Rs.31,500/-(Rupees Thirty One Thousand and Five Hundred only) from the defendants 2 and 3 and registered a discharge receipt before the Registrar Office during the year 1994. The possession of the suit property was handed over to the defendants 2 and 3. The sale dated 14.05.1984 is a fraudulent one. The plaintiffs have no title or possession over the suit property and that the suit property is in possession of the defendants. The plaintiffs are not entitled for any adverse possession. When the Commissioner petition was pending for appointment of a Commissioner to harvest the paddy, the plaintiffs themselves have harvested the paddy and there was a police complaint and the suit is to be dismissed.
7.This Court by order dated 13.12.2018, has admitted the second appeal and has framed the following substantial questions of law, which are as follows:
“(i)Whether the lower Appellate Court is correct in law in framing necessary issues to determine the appeal as contemplated under Order 41 Rule 31 of C.P.C.,?” http://www.judis.nic.in 5 Issue No.1:
8.On the side of the appellants, it is stated that the first Appellate Court is not correct in law in not framing necessary issues to determine the case as contemplated under Order 41 Rule 31 of C.P.C. It is stated that the first Appellate Court fails to frame relevant to decide the case.
9.A perusal of the records reveals that the first Appellate Court failed to frame issues and the only issue framed is 'whether the appeal is to be allowed'. It is the duty of the first Appellate Court to frame issues to decide the facts and law involved in the case. The following issues are necessary to decide the case:
“(i)Whether the second defendant was a minor at the time of execution of Ex.A1?
(ii)Whether the second defendant is entitled to execute a sale deed on behalf of the third defendant?
(iii)Whether the sale deed dated 14.05.1984 is valid?
(iv)Whether the third defendant can question the sale after the expiry of three years from his attaining majority?
(v)Whether the suit is time bared?
(vi)Whether the plaintiffs are entitled for the reliefs sought for?” http://www.judis.nic.in 10.In the above circumstances, the first Appellate Court is directed to frame 6 R.THARANI, J.
mrn the above said issues and to decide the issues after giving opportunities for both sides as per law within a period of four months from the date of receipt of copy of this order. With the above direction, the Judgment and Decree passed in A.S.No.20 of 2007 dated 16.07.2009 on the file of the Subordinate Court, Usilampatti (Camp) is set aside and the matter is remitted back to the lower Appellate Court for fresh consideration. Accordingly, the second appeal is disposed of. The Registry is directed to return back the records called for from the lower Court. No Costs. Consequently, connected miscellaneous petition is closed.
2.The District Munsif cum Judicial Magistrate No.I, Usilampatti.
3.The V.R.Section, Madurai Bench of Madras High Court, Madurai.
S.A.(MD)No.71 of 2010 http://www.judis.nic.in 15.02.2019