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Mahalakshmi Vs. Anandam and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberSecond Appeal (Md) No. 1181 of 2006
Judge
AppellantMahalakshmi
RespondentAnandam and Others
Excerpt:
.....and mandatory injunction directing the defendant to hand over the vacant possession of the suit property to her. during the pendency of the suit, the defendant raji reddiar died and hence his legal heirs, namely, the appellant and the respondents 2 and 3 herein were impleaded as defendants. the suit property is a residential house. the suit was partly allowed, by judgment and decree dated 08.06.2005. the prayer for declaration was granted in favour of the first respondent / plaintiff declaring her title in respect of the suit property and the appellant / 4th defendant and the respondents 2 and 3 / defendants 2 and 3 were directed to hand over the vacant possession of the suit property to the first respondent / plaintiff within three months. however, the suit for permanent.....
Judgment:

(Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree, dated 24.04.2006, passed in A.S.No.7 of 2006, by the learned Subordinate Judge, Virudhunagar, confirming the Judgment and Decree, dated 08.06.2005, passed in O.S.No.146 of 2000, by the learned District Munsif, Virudhunagar.)

1. The first respondent / plaintiff filed a suit in O.S.No.146 of 2000, before the learned District Munsif, Virudhunagar, initially as against one Raji Reddiar, for declaration, permanent injunction and mandatory injunction directing the defendant to hand over the vacant possession of the suit property to her. During the pendency of the suit, the defendant Raji Reddiar died and hence his legal heirs, namely, the appellant and the respondents 2 and 3 herein were impleaded as defendants. The suit property is a residential house. The suit was partly allowed, by Judgment and Decree dated 08.06.2005. The prayer for declaration was granted in favour of the first respondent / plaintiff declaring her title in respect of the suit property and the appellant / 4th defendant and the respondents 2 and 3 / defendants 2 and 3 were directed to hand over the vacant possession of the suit property to the first respondent / plaintiff within three months. However, the suit for permanent injunction was dismissed.

2. Aggrieved by the same, the appellant / 4th defendant and the respondents 2 and 3 / defendants 2 and 3 preferred an appeal in A.S.No.7 of 2006, before the learned Subordinate Judge, Virughunagar, and the same was dismissed by Judgment and Decree, dated 24.04.2006, confirming the Judgment and Decree, dated 08.06.2005, passed in O.S.No.146 of 2000, by the learned District Munsif, Virudhunagar.

3. Aggrieved by the dismissal of A.S.No.7 of 2006, the appellant / 4th defendant has preferred the present appeal.

4. It is a common case of both the parties that originally the suit property and other properties belonged to the first respondent / plaintiff's grandfather Late.Valu Reddiar, who executed a registered Settlement Deed during 1947 and settled the suit property and other properties in favour of the plaintiff's mother one Tmt.Lingammal and her sister Tmt.Seethalakshmi. It is the case of the plaintiff that after the demise of the said Lingammal and Seethalakshmi, their legal heirs became the absolute owner of the suit property and other properties, which were settled under the Settlement Deed executed in the year 1947. The first respondent / plaintiff further contended that she is the only legal heir of Lingammal and entered into an Agreement with the legal heirs of Seethalakshmi for partition of the said properties and by virtue of the said partition, the suit property and other properties were allotted to the share of the first respondent / plaintiff. The plaintiff further pleaded that she had been in possession and enjoyment of the said properties for longtime. According to the plaintiff's case, the appellant / 4th defendant and the respondents 2 and 3 / defendants 2 and 3 had no right or title over the suit property, but tried to interfere with the plaintiff's peaceful possession and enjoyment of the suit property and hence she was constrained to file the suit.

5. The sum and substance of the written statement filed by the appellant / fourth defendant and adopted by the other defendants was that they are tenants in the suit property under Seethalakshmi / sister of Lingammal. They denied the partition arrangement, which was pleaded by the first respondent / plaintiff. Though the appellant / 4th defendant and the respondents 2 and 3 / defendants 2 and 3 claimed right under Seethalakshmi, they have not produced any scrap of papers to prove that they were given lease of the property by Seethalakshmi or her legal heirs. Further, during the course of trial, the first respondent / plaintiff examined one Palanichamy as P.W.3, who is one of the legal heirs of Seethalakshmi. He clearly deposed that there was an oral partition between the first respondent / plaintiff and the legal heirs of Seethalakshmi and that under the said oral partition, the suit property was allotted to the share of the first respondent / plaintiff. In view of the fact that the evidence of P.W.3 is not controverted by the appellant / 4th defendant and the respondents 2 and 3 / defendants 2 and 3, the Trial Court and the Lower Appellate Court has given a categorical finding with regard to the title of the pre-decessor's interest of the first respondent / plaintiff. Since the appellant / 4th defendant and the respondents 2 and 3 / defendants 2 and 3 were in possession and enjoyment of the suit property, not as tenants, but as encroachers, both the Courts below concurrently held that the defendants' possession is illegal. Hence, both the Courts below are perfectly correct in rejecting the case of the appellant / 4th defendant and the respondents 2 and 3 / defendants 2 and 3 and directing them to hand over possession of the suit property to the first respondent / plaintiff.

6. The substantial questions of law raised by the appellant / fourth defendant are as follows:

i. Whether the 1st Appellate Court is correct in deciding the appeal even without framing the issues for consideration in which it is mandatory in nature under Order 41 Rule 31 C.P.C?

ii. Whether the courts below are correct in deciding the title of the plaintiff on the basis of the oral partition allegedly effected in between Plaintiff and P.W.3 even without impleading all the legal heirs of Late.Seethalakshmi?

iii. Whether the courts below are correct in deciding the title in favour of the plaintiff even without impleading the real owners / legal heirs of Seethalakshmi, when Ex.A1 gave title to both Lingammal and Seethalakshmi and they are necessary parties under Order 1 Rule 10 C.P.C?

iv. Whether courts below are correct in deciding the title in favour of the plaintiff for defendants' non explanation of Exs.B1 to B3, when it is a settled law that the plaintiff can not take advantage of the defendants' case and the plaintiff must prove his case on his own documents?

7. With regard to the first question of law, the Lower Appellate Court has considered all the issues in reference to the documents filed and evidence adduced. When the Judgment of the Lower Appellate Court clearly indicates that it has applied its independent mind and taken a decision after appreciating the entire materials and evidence available on record, it cannot be said that the Judgment and Decree of the Lower Appellate Court are vitiated.

8. With regard to the second question of law, it is to be noted that the first respondent / plaintiff filed a suit for declaration of title with the consequential prayer of recovery of possession. The defendants claimed right only under Seethalakshmi stating that they are tenants under her and that the said Seethalakshmi was in joint possession of the suit property. P.W.3, who is one of the legal heirs of Seethalakshmi, has categorically deposed that there was an oral partition between the plaintiff and Seethalakshmi and that the plaintiff was allotted the suit property. P.W.3 further deposed that Seethalakshmi or her heirs did not give any lease of the property in favour of the defendants. Based on the oral and documentary evidence adduced on both sides, categorical findings have been rendered by the Lower Appellate Court on the question of title and partition in favour of the plaintiff. Hence, there is no substance in the second question of law.

9. With regard to the third question of law, it was the specific case of the first respondent / plaintiff that she is in enjoyment of the suit property as the exclusive owner. Since the partition and allotment of suit property in favour of the plaintiff has been accepted by the Courts below, it is not necessary for the plaintiff to implead the legal heirs of Seethalakshmi.

10. Apart from the questions of law raised by the appellant, this Court at the time of admission of this appeal, framed the following questions of law:

i. Whether the Courts below are correct in accepting the oral transaction or agreement between plaintiff and P.W.3 in transferring their interest even without reduced to form of document in which it is mandatory under Section 91 of the Indian Evidence Act?

ii. Whether the Courts below are correct in deciding the title of the plaintiff on the basis of oral agreement with P.W.3, which was not even reduced into writing?

iii. Whether the Courts below are correct in accepting the oral agreement of plaintiff with P.W.3 in which it contravenes provisions of Registration Act saying that any transaction value of more than Rs.100/- is to be registered; if not registered, it has no evidentiary value at all?

11. With regard to the first question of law, it is a trite proposition of law that oral partition is permissible in law as partition does not involve any transfer of interest in immovable property. Hence, oral partition can be validly pleaded and proved and such a oral partition need not be reduced to the form of a document under Section 91 of the Indian Evidence Act.

12. With regard to the 2nd and 3rd questions of law, they revolve around the validity of the oral partition without being reduced to the form of a registered document. Hence, the answer for the first question is sufficient for the other two questions.

13. Considering the facts and circumstances of the case and in view of the concurrent findings of the Courts below, I find that there is no merit in the second appeal and the same is, therefore, liable to be dismissed.

14. In the result, the second appeal is dismissed and the Judgment and Decree, dated 24.04.2006, passed in A.S.No.7 of 2006, by the learned Subordinate Judge, Virudhunagar, confirming the Judgment and Decree, dated 08.06.2005, passed in O.S.No.146 of 2000, by the learned District Munsif, Virudhunagar, are confirmed. However, there is no order as to costs.


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