The plaintiff is the appellant. Suit filed for declaration and consequential relief of permanent injunction was decreed by the trial Court. On appeal, the lower appellate Court set aside the decree and dismissed the suit with costs. Aggrieved by that, the appellant has preferred the second appeal.
2. The case of the plaintiff is that his father Ariaputhri Padayatchi purchased 7 kuzhies 8 veesams from one Muthukrishnan on 27.09.1981. He sold 5 kuzhies of land on the northern side to Kannan on03.09.1981, who is the first defendant in the suit and retained 2 kuzhies 8 veesams on the southern side with him. That extent of 2 kuzhies and 8 veesams is the subject matter of this appeal.
3. Further case of the plaintiff is that during the life time of Ariaputhri Padayatchi, family partition took place and the suit property was allotted to the plaintiff vide partition deed dated 25.08.1994. Since then the plaintiff is exclusively enjoying the suit property. While so, the defendants who are the adjacent land owners are trying to encroach into the suit property slowly. To prevent that he fenced the property on 02.08.1997. The defendants dismantled the fence. Police complaint was given by the plaintiff, wherein the police advised him to seek remedy before the Civil Court. Hence, the suit.
4. The defendants 1 and 2 are the husband and wife with alleged estranged relationship. The second defendant filed her written statement alleging that the suit property is a piece of land out of 16 kuzhies owned by Pavadai Gounder alienated 2 kuzhies of land to his granddaughter and remaining extent of land was enjoyed by him without any disturbance. The other son of Pavadai Gounder by name Mani released his right over the suit property in favour of the first defendant and thereby, the entire property held by Pavadai Gounder has devolved upon the first defendant. There was a matrimonial dispute between the first and the second defendants and therefore, in collusion with the first defendant's the plaintiff created the alleged sale deed dated 27.08.1981 as if one Muthukrishnan brother of Pavadai Gounder sold 7 kuzhies 8 veesams to the plaintiff's father and another sale deed created within a week as if the father of the plaintiff alienated 5 kuzhies of land to the first defendant and retained the remaining 2 kuzhies and 8 veesams. The suit property is in exclusive possession and enjoyment of the defendants family and they are using it as depository of cattle waste and fire woods. Hence, the suit is liable to be dismissed.
5. The trial Court after examining two witnesses on the side of the plaintiff and 7 exhibits in support of the plaint and two witnesses on the side of the defendants and 3 exhibits in support of the written statement allowed the suit, which was subsequently reversed by the first appellate Court on the ground that Exs.A1 and A2 are sham and nominal documents. The possession of the property was not with the plaintiff. The plaintiff has failed to prove that his father had title to convey through Ex.A1.
6. Against the reversal judgment, the plaintiff has preferred the second appeal. At the time of admission, this Court has formulated the following Substantial Questions of Law for consideration:
“(1)Whether the reasoning of the learned District Judge finding that the sale deed in favour of the plaintiff and the 1st defendant was sham and nominal not erroneous and untenable by reason only of the date of purchase by the plaintiff's father and his sale to the first defendant were proximate in point of time?
(2) Whether the alleged admission of the first defendant to the police under Ex.B2 constitute on admission against the plaintiff in respect of ownership and possession of the suit property?
(3) Whether the sale by the plaintiff to the 1st defendant does not itself estop the 2nd defendant, who is his wife, from setting up title to the property in herself?”
7. The facts admitted by both the parties are:
(a) The suit property stands in the name of Pavadai Gounder.
(b) Pavadai Gounder had 2 sons namely, Soundararajan (first defendant) and Mani (C)Muthukrishnan sold suit property to the plaintiff's father Ariputhiri Paddyatchi, who is son of Suburaya gounder.
(d)Pavadai Gounder and Muthukrishnan are brothers of the plaintiff trace title over the property through Ex.A1. The sake deed executed by Muthukrishnan.
8. No doubt the learned appellate Judge has referred the proximity of time between Exs.A1 and A2 and held if at all the first defendant wants to sell the property to the second defendant within one week from his purchase of the suit property, that too for the sale consideration he received long back, he could have very well got the sale deed executed in the name of the 2nd defendant directly. This does not appear to be a proper logic for consideration under law. Even on fact, Ex.A1 is dated 27.08.1981, an extent of 7 kuzhies 8 veesms purchased whereas what sold in Ex.A2 is only 5 kuzhies. Therefore, no illegality could be inferred just because Ex.A2 was executed within a week from the execution of Ex.A1.
9. Likewise, Ex.A2 the alleged admission in police station cannot be an evidence worth to be relied upon. So, Ex.B2 should be eschewed.
10. But there are not the only reason for the lower appellate Court to allow the suit, the Court has considered Ex.B3 dated 13.05.1992 executed by the first defendant brother Mani and said if really the first defendant has purchased 5 kuzhies of land under Ex.A2 then there is no necessity for him to execute release deed on 13.05.1992. So, held that Exs.B1 to B3 reveal Muthukrishnan is not the owner of the suit property. Sale deed-Ex.A1 executed by Muthukrishnan in favour of the first defendant is sham and nominal. Therefore, no right flows to the plaintiff to declare her as the owner of the suit property. Evidence of PW1 and PW2 coupled with documentary evidence proves that the plaintiff is not in possession of the suit property at the time of filing the suit. So, she is not entitled for injunction against the defendant.
11. If the recitals of Exs.A1 and A2 read together, one can understand the finding of the first appellate Court is justifiable. The recital of Ex.A1 reads as under:-
“ vd; gpJuhjp tHp te;j tifapy; vdf;Fr;
brhe;jkhdJk;. vd; rnfhjuh; ghthilnguhy; gl;lhthf cs;sJk;. vd;ghfj;Jf;F tuntz;oaJkhd fPH;f;fz;l brhj;ij////////////”
It is clear from the recital the property was not divided among the brothers and patta was in the name of Pavadai Gounder. Further the four boundaries of the property is described as below:-
”brhj;J g[Jit hp/o/cHth;fiu rg;/hp/o/cHth;fiu tl;l Cuhl;rp. gps;isr;rhto btsp. Rpd;d fhyhg;gl;oy; hP/r/be/139-6. f/be/1177 2-3. gl;lh be/234 ,y; cs;s OH/04A.00 Ca mjhtJ bfh/7FHp 8tPrk; g[d;bra; kjpg;g[ U:/1000-= ehfg;gf;ft[z;lh; g[d;bra;f;Ff; fpHf;Fk; tlf;Fk;. rpd;d fhsp g[d;bra;f;F nkw;F. Xilf;Fj; bjw;F/”
Whereas, it could be seen, the schedule of property in Ex.A2 executed within a week is embellished with details which are not found in Ex.A1.
”brhj;J g[Jit hp/o/cHth;fiu rg;/hp/o/. nkw;go mhpag[j;jphp gilahr;rp cHth;;fiu tl;l Cuhl;rp. gps;isr;rhto btsp. Rpd;d fhyhg;gl;oy; gl;lh hP/r/be/234 hP/r//M/ 139-6. f/M/1177 2-3 ,y; cs;s OH.08a 5 Ca mjhtJ 15 FHp g[d;bra; ,jpy; tlg[wkhf ehd; fpuak; bgw;wJ OH 4 A 2 1-2 Ca mjhtJ 7F 8tP ,jpy; tlg[wkhf ehd; c';fSf;F fpuak; bra;Jf;bfhLg;gJ OH.02a 68 Ca mjhtJ 5 FHp g[d;bra; gl;oay; kjpg;g[ U:/1000-=”
12. The vendor in Ex.A1 has not stated when the partition took place between him and his brother Pavadai Gounder and what was the extent in the property allotted to him in the partition. Without tracing his right over the property, he has sold the property to the father of the plaintiff. Within a week, the plaintiff father has sold a major portion of it to the second defendant, but able to give details, which is not found in his parent document Ex.A1.
13. Ex.A7 is the Tamil translation of the decree passed in the suit in No.1111/396/63 filed by Kaliammal, W/o Muthukrishnan against Pavadai Gounder. The Court has held that the suit property is in absolute possession of Pavadai Gounder and the claim of Kaliammal is unreasonable. Hence, the decree has been passed against Kaliammal, W/o Muthukrishnan that she cannot stake any claim over the suit property. Therefore, the lower appellate Court is right in holding that Muthukrishnan is not the original owner of the suit property and the alienation in the name of Muthukrishnan in favour of the first defendant by virtue of Ex.A1 and the sale of the first defendant in favour of the second defendant by virtue of Ex.A2 are sham and nominal created to eject the second defendant from the suit property is fully fortified by the evidence.
14. For the above said reasons, this Court finds no reason to interfere with the conclusion of the trial court though certain observations of the lower appellate Court may not be in accordance with the established law. The Substantial Questions of Law formulated are answered as above.
15. In the result, the Second Appeal is dismissed. No order as to costs.
24.02.2017 Index:Yes/No Internet:Yes/No ari To The III Additional District Judge, Pondicherry.
The III Additional District Munsif, Pondicherry.
Dr.G.Jayachandran,J.
ari
Pre-delivery judgment made in
S.A.No.1205 of 1999
24.02.2017
http://www.judis.nic.in