Challenging the judgment and decree dated 06.04.2000, passed in A.S.No.217 of 1999 by the Principal District Judge, Dindigul, by reversing the judgment and decree dated 27.11.1998, passed in O.S.No.305 of 1997 on the file of the First Additional District Munsif, Dindigul, the present second appeal has been preferred. The plaintiffs are the appellants herein.
2.For the sake of convenience, the parties will hereinafter be referred to as they were arrayed in the trial court.
3.The case of the plaintiffs is that the suit property and other properties originally belong to one Therasammal, who is the mother of first and second plaintiffs and grandmother of 3rd and 4th plaintiffs. The properties were purchased from one Santhayammal and others as vacant site by Therasammal and she was in possession and enjoyment of the property, till she died 11 years ago. In respect of the same, a partition took place on 09.05.1990 among the children of the said Therasammal and they were in separate possession and enjoyment of the property, as per partition. The rough sketch of the suit property is produced as Ex.A.1. The portion shown in blue colour was given to the first plaintiff, yellow coloured portion was given to the second plaintiff. Green coloured portion to 3rd and 4th plaintiffs, while the red coloured portion was given to the first defendant. It is further stated that the first defendant has put up a house in the said property and living there. Apart from the said property, the first defendant is not having any other property in that area. Whileso, the defendants herein tried to occupy the suit property without any right on 15.06.1997. But the same was prevented by the plaintiffs. The second defendant, who has no interest in the suit property has joined hands with the first defendant and tried to take possession of the property. The defendants again made an attempt to occupy the property on 19.06.1997 and the same was prevented by the plaintiffs. The defendants have no right, title or interest in the suit property and they are trying to interfere with the plaintiffs' possession, who are the true owners of the property. Hence, the plaintiffs have sought for the relief of permanent injunction, restraining the defendants from interfering with their possession. The plaintiffs also produced the partition deed, entered into among themselves and also the land survey records obtained from Dindigul Municipality in respect of the suit property as Exs.A-2 and A-3 respectively, in support of their contentions. Thus, the plaintiffs filed the suit, seeking the relief of permanent injunction.
4.On the other hand, disputing the claim of the plaintiffs, it is contended by the defendants that nothing is stated specifically about the extent of property divided among the plaintiffs on 09.05.1990. Further, the four boundaries of the property is not correctly given in the plaint and the details furnished in the rough sketch as well as plaint filed by the plaintiffs is not correct. The plaintiffs have come forward with wrong particulars in the plaint. The claim of the plaintiffs that on 15.06.1997 and again on 19.06.1997, the defendants tried to interfere with the plaintiffs' possession is not true and no such occurrence took place, as alleged in the plaint. The defendants also disputed the claim of the plaintiffs about the execution of partition deed on 09.05.1990 and stated that the same is not true. The property in T.S.No.1442/10, Adiyanathu Village, Dindigul Taluk and Town originally belong to one Veeni Arockyasamy and he had two wives. After his demise, the second wife Santhayammal and her children have sold only 24 cents of the total property to Therasammal with specific boundaries. Further, on 11.08.1958, the remaining extent of 80 cents was settled in favour of children of late Arockiyasamy. Subsequently, due to the dispute over the property, one Arockyammal, D/o.Arockiyasamy filed the suit against the first defendant and his wife through her power of attorney, who is the second defendant herein and therein and a finding was given by the court to the effect that the first defendant as the wife do not possess any property apart from 24 cents with prescribed boundaries. The judgment copy of the said judgment in O.S.No.1471 of 1985 is filed as Ex.B.3 and the decree copy of the said judgment is marked as Ex.B.4. Aggrieved over the same, an appeal in A.S.No.51 of 1993 was preferred and the same was dismissed, confirming the Ex.B.3 judgment passed in O.S.No.1471 of 1985. The copy of the said judgment in A.S.No.51 of 1993 is filed as Ex.B.5. Against that, no second appeal was preferred by the first defendant/his wife and the conclusion has become final. Subsequent to the filing of the earlier suit, the plaintiffs and the first defendant created a partition deed dated 09.05.1990 fraudulently and they are giving nuisance to the second defendant herein. Since the issue relating to 24 cents property, purchased by Therasammal has already been decided in the earlier suit, the plaintiffs herein are not entitled to file the present suit. There is no cause of action for the suit and as such, the plaintiffs filing the suit only for bare injunction, without seeking the relief of permanent injunction, is not maintainable and the same is liable to be dismissed.
5.The trial court, on perusal of the pleadings, framed the following issues:
?1.thjpfSf;F cWj;Jf;fl;lis ghpfhuk; fpilf;fj;ff;fjh?
2.thjpfSf;F fpilf;Fk; ghpfhuk; vd;d??
6.During the course of trial, the first plaintiff examined two witnesses and marked Exs.A.1 to A.3. On the side of the defendants, the second defendant examined himself as D.W.1 and produced Exs.B.1 to B.5.
7.The trial court, on consideration of the pleadings and oral and documentary evidence, held that the suit property, which originally belonged to Veeni Arockiasamy was purchased by the mother of the first and second plaintiffs and grandmother of 3rd and 4th plaintiffs one Kuzhanthi Therasammal. The trial court also found that 24 cents property was purchased by the said Kuzhanthi Therasammal and the sale deed is produced by the defendants as Ex.B.1. Even though the defendants contended before the trial court that the property mentioned under Ex.A.2/partition deed is larger in extent than the property purchased under Ex.B.1 sale deed, the trial court found that the property purchased under Ex.B.1/sale deed is given specific boundaries and it is also mentioned in the said sale deed that in the north of the suit property, a pathway running from east to west is given to the plaintiffs. The trial court also observed that in Ex.A.2/partition deed, it is mentioned that 21 cents has been divided into house sites leaving out the remaining portion of the 24 cents purchased by Kuzhanthi Therasammal as pathway. The trial court also held that in Ex.B.2, it is clearly stated that 11 feet pathway is provided in the plaintiffs' property itself. On such finding, the trial court further held that defendants failed to produce sufficient evidence to show that the plaintiffs have trespassed into the defendants' property. The trial court also relied upon Ex.A.3, issued by Dindigul Municipality to hold that the land in possession and enjoyment of the plaintiffs is the same 24 cents land as purchased under Ex.B.1 sale deed. On that background, the trial court held that the property in possession and enjoyment of the plaintiffs is the same as found in Ex.B.1/sale deed and decreed the suit as prayed for.
8.Aggrieved over the said judgment and decree, the defendants preferred A.S.No.217 of 1999 on the file of the Principal District Court, Dindigul. The lower appellate court, on going through the grounds of appeal framed the following points for determination:
?1. th.rh.M.1y; cs;s nlA;fs; thjpfSf;Fg; ghj;jpag;gl;l nlj;jpy; fl;lg;gl;Ls;sJ vd;W epUgzk; bra;ag;gl;Ls;sjhft[k; jhthr;brhj;J thjpfspd; mDgtj;jpy; cs;sJ vd;Wk; thjpfs; epue;ju cWj;Jf;fl;lis ghpfhuk; bgw mUfija[s;sth;fs; vd;Wk; fPHik ePjpkd;wk; jPh;khdpj;jpUg;gJ jtwhdjh?
2.fPHik ePjpkd;wj;jpd; jPh;g;g[ kw;Wk; jPh;g;ghiz jtwhdJ vd;W uj;J bra;ag;gl;L ,e;j nky;KiwaPL mDkjpf;fj;jf;fjh??
9.The lower appellate court reappraised the evidence available on record and held that both sides accepted the fact that Therasammal has purchased the property measuring 24 cents from Veeni Arockiasamy under Ex.B.1/sale deed. It is evident from the said sale deed that 24 cents of property in Sy.No.1410 with specific boundaries has been purchased. However, the first appellate court held that the property shown in the plaint as well as in the rough sketch attached with the plaint does not tally with the boundaries given in Ex.B.1 sale deed. The first appellate court elaborately discussed the details of boundaries given in Ex.B.1/sale deed as well as in the schedule of property given in the plaint and the description of property in the sketch enclosed with the plaint and pointed out the difference in the boundaries given in the said documents. The first appellate court categorically held that the boundaries mentioned in Ex.B.1 on the plaint differs in all four sides. It further held that only because variation in description of property found in Ex.B.1 and in the plaint, the plaintiffs failed to produce the sale deed in her favour in respect of the suit property before the court. The first appellate court also held that even though oral evidence was let in in support of the claim of the plaintiffs, there is no material to show that the property mentioned in Ex.B.1 is the same as the property mentioned in the plaint and the plaintiffs have not produced enough materials to substantiate the same. On that basis, the first appellate court held that as the plaintiffs failed to establish that the suit property is the same as the one purchased under Ex.B.1/sale deed and Ex.A.2/partition deed, relates to the suit property and further, as there is no evidence to establish the fact of property divided under Ex.A.2, is the same as one purchased by Therasammal, the finding of the trial court is unsustainable and accordingly, reversed the same, holding that the plaintiffs are not entitled for the relief of injunction, as prayed for, by him and allowed the appeal.
10.As the first appellate court reversed the judgment of the trial court, the plaintiffs have come forward with the present second appeal, challenging the legality of the first appellate court's finding.
11.At the time of admitting the second appeal, this court has framed the following substantial questions of law for consideration:
?1.Whether the lower appellate court is right in dismissing the suit for injunction having come to the conclusion that the plaintiff is in possession of the 14 cents in the total on the date of filing of the suit?
2.Whether the lower appellate court in dismissing the suit comparing the plaint schedule of the year 1997 with that of the sale deed in the year 1958, 35 years prior to the plaint??
12.The learned counsel for the appellants/plaintiffs vehemently contended that the suit property was purchased by Kuzhanthi Therasammal and the extent is 24 cents with specific boundaries and the same was subsequently partitioned among the children of the said Therasammal, as evidenced by Ex.A.2 and the plaintiffs are in possession and enjoyment of the property and the finding of the trial court is perfectly correct and the first appellate court has wrongly appreciated the facts and the evidence on record and dismissed the suit. Hence, the plaintiffs seek to set aside the judgment of the first appellate court and restore the judgment of the trial court, whereby the relief sought for by the plaintiffs was granted.
13.Per contra, the learned counsel for the respondents/defendants contended that the plaintiffs have not produced the original sale deed, only because the property mentioned in the sale deed is not same as the one mentioned in the suit and further the boundaries of the property does not tally and the plaintiffs are not in possession and enjoyment of the property, as claimed by him and the identity of the property also is not established by the plaintiffs and as such, the finding of the first appellate court is perfectly just and correct and contended that it needs no interference. He also pointed out discrepancy in the oral evidence of P.W.1 about the extent given to each person under Ex.A.2/partition deed and according to the defendants, the contradictions in P.W.1's evidence will clearly prove that the claim of the plaintiffs is not just and proper. Hence, the defendants seek dismissal of the second appeal with costs.
14.This Court considered the rival submissions and materials available on record and also perused the impugned judgments passed by the courts below.
15.The plaintiffs sought for permanent injunction to restrain the defendants from interfering with the possession and enjoyment of the suit property. The plaintiffs have claimed that the property covered under Ex.B.1 sale deed is the suit property. No reason is stated by the plaintiffs for not producing the said sale deed on their side. Further, perusal of 4 boundaries mentioned in Ex.B.1 sale deed and description of property given in the plaint clearly shows that the boundaries do not match with one another. Further, the second defendant who has deposed as P.W.1 has stated that under Ex.B.2, partition deed, each person was given 6 cents and even before partition, pathway was provided for. It is evident from Ex.A.1/sketch that east-west 12 feet, north-south 11 feet was shown as common property in that regard, P.W.1 in his evidence stated that the entire 24 cents has been partitioned and no portion of the same was provided for pathway. If the evidence of P.W.1 is to be accepted, in the event of 12 x 11 feet extent was provided for pathway, then, each person could not have been granted 6 cents, as claimed by P.W.1. On perusal of the records, it is clear that the four boundaries given in Ex.A.1/sale deed do not match with the description of property given in the plaint. In addition, P.W.1 has given contradictory evidence before the court. Further, it is also pointed out by the respondent herein that in the rough sketch filed by the plaintiffs, the extent of property given to each person in partition is not specifically mentioned and in such circumstances, the contention of the plaintiffs that the suit property is the same as the one purchased under Ex.B.1 and the entire extent of that property was divided as per Ex.A.2 and the said property in possession and enjoyment of the four plaintiffs cannot be accepted and the finding of the first appellate court in that regard is just and proper and it needs no interference.
16.The substantial questions of law raised by the appellants/plaintiffs are answered against the appellants. In the considered opinion of this Court, the finding of the first appellate court is based upon proper appreciation of oral and documentary evidence and as such, the judgment under challenge passed by the first appellate court warrants no interference.
17.In the result, the second appeal is dismissed by confirming the judgment and decree passed by the first appellate court in A.S.No.217 of 1999, reversing the judgment and decree of the trial court, passed in O.S.No.305 of 1997. No costs.
To
1. The Principal District Judge, Dindigul
2. The First Additional District Munsif, Dindigul
3.The Section Officer, V.R Section, Madurai Bench of Madras High Court, Madurai.
.