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G.Devadasa v. A.Sundarapandy(died) - S.A.No.34 of 1997  RD-TN 1723 (4 June 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04/06/2007
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.34 of 1997
G.Devadasan .. Appellant
(R2 to R6 brought on record as L.Rs of the deceased first respondent vide order dated 04.09.2003 made in C.M.P.No.9268 of 1999 in S.A.No.34 of 1997.) 7.Florence
8.Princess Sugulin (Minor)
9.Princess Atlin (Minor)
10.Antony Sundar Victor (Minor) .. Respondent Plaintiff (R7 to R10 brought on record as L.Rs of the deceased third respondent vide order dated 04.09.2003 made in C.M.P.No.1661 to 1663 of 1999 in S.A.No.34 of 1997.) Prayer
Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 13.09.1996 in A.S.No.36 of 1993 on the file of the learned Principal District Judge, Tuticorin, confirming the decree and judgment dated 18.11.1992 in O.S.No.352 of 1985 on the file of the learned District Munsif, Srivaikuntam.
For Appellant .... Mr.M.Joseph
For Respondents .... No representation.
This second appeal is focussed as against the concurrent findings of both the Courts below vide judgments dated 13.09.1996 in A.S.No.36 of 1993 on the file of the learned Principal District Judge, Tuticorin, confirming the decree and judgment dated 18.11.1992 in O.S.No.352 of 1985 on the file of the learned District Munsif, Srivaikuntam.
2. The parties for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. The plaintiff filed the original suit as against the defendant for declaration of his title and for recovery of possession, based on his title deed namely the sale deed Ex.A.3 dated 02.04.1979 which was executed in his favour by Savari Muthu Nadar who earlier purchased the property from his father Maria Savari Muthu Nadar as per sale deed dated 25.01.1941.
4. Challenging and impugning, denying and gainsaying the allegations/averments of the plaintiff relating to the suit claim, the defendant filed the written statement resisting the prayer of the plaintiff.
5. The first appellate Court confirmed the judgment of the trial Court by giving a finding to the effect that the vendor of the plaintiff had title and conveyed it as per Ex.A.3, in favour of the plaintiff to an extent of 8 1/6 cents of land on the southern portion of the entire extent of 20 cents of land which originally belonged to Maria Savari Muthu Nadar.
6. Being aggrieved by and dissatisfied with the judgments of both the Courts below, the second appeal has been filed on the following main grounds: (i) Both the Courts below erroneously relied upon the findings in the dismissal judgment in O.S.No.140 of 1980 which was filed by the same plaintiff as against the same defendant herein who is the appellant herein. Hence, the defendant had no opportunity of challenging the findings thereunder as against him.
(ii) The suit property herein is not the subject matter of the sale under Ex.A.1. The deceased Savari Muthu, the vendor of the plaintiff and his two sisters jointly had right over the said 20 cents of land. (iii) Both the Courts below failed to note that Ex.A.3, the sale deed dated 02.04.1979, is not a true and valid document as it was a fabricated one and it emerged out of impersonating Savari Muthu Nadar. (iv) The trial Court has not appreciated the evidence properly as against Ex.A.3.
(v) Savari Muthu Nadar was suffering from mental derangement at the time of emergence of Ex.A.3 and this fact was not considered by the trial Court, which also failed to note that the defendant acquired prescriptive title by adverse possession.
7. Based on the main grounds set out supra, my learned Predecessor formulated the following substantial questions of law: "(i) Whether the suit for possession of undivided 8 1/6 cents without partition is maintainable and decree passed therein is sustainable in law? (ii) Whether on the finding of long possession, over the statutory period, the Court ought to have found in favour of the defendant, acquisition of title by adverse possession?"
8. Heard the learned Counsel for the appellant in entirety; however the learned Counsel for the respondent is absent.
9. The learned Counsel for the appellant would advance his argument to the effect that the suit itself was bad for want of a prayer for partition in view of the fact that Devadasan, the defendant herein, is one of the co-sharers admittedly and there was no relationship of landlord and tenant between the plaintiff and the defendant.
10. The learned Counsel for the appellant would portray and put forth his argument further to the effect that Ex.A.3, the sale deed dated 02.04.1979 allegedly executed by Savari Muthu in favour of the plaintiff, is an illegal document as Savari Muthu was out of his compos mentis at the time of allegedly executing the sale deed and to that effect, the defendant in paragraph No.4 of the written statement, specifically raised a specific plea.
11. The first substantial question of law is relating to the fact as to whether the suit itself was bad in the absence of a prayer for partition.
12. The perusal of the records and the evidence in particular would convey and project that originally one Maria Savari Muthu was owning 20 cents and out of which he sold 10 cents on the southern portion in favour of his son Savari Muthu vide sale deed dated 25.01.1941. It appears that the said Savari Muthu while executing the sale deed Ex.A.3, sold an extent about 16 cents of land including two houses. In the previous litigation initiated by the plaintiff in O.S.No.140 of 1980, the Court gave a finding to the effect that the suit was bad for want of a prayer for declaration of title, nevertheless certain findings were given as against the defendant, over such judgment both sides did not prefer any appeal.
13. The gist and kernel of the contention of the learned Counsel for the appellant is that inasmuch as the suit itself was dismissed despite certain findings in the previous suit were as against him, there was no necessity on the part of the defendant to prefer any appeal. In order to analyse the first substantial question of law as to whether the suit is bad for want of a prayer for partition, I have to peer into the fact, whether the suit property herein situates in the southern portion of the said 20 cents of law or on the northern portion of it. The judgments of both the Courts below as against which the second appeal has been focussed, would categorically render a finding that the said extent of 8 1/6 cents of land wherein the said two houses are situated is on the southern portion of the entire extent of 20 cents of land.
14. The sale deed dated 25.01.1941 is not under challenge at all. Hence, in such a case, it is at once crystal clear that the suit property which is held exist in the southern side of the entire extent of 20 cents would not attract the prayer for partition at all.
15. The learned Counsel for the appellant would also stress upon the fact that the two houses are not situated in the southern portion of the said 20 cents of land.
16. Here, both the Courts below gave a finding on fact that the said extent of 8 1/6 cents of land is situated only on the southern side of the entire extent of 20 cents of land and in the previous proceedings also, the findings are to that effect only and as such this Court cannot re-open those findings of fact and come to any different conclusion. It is therefore obvious and clear that once the suit property is held to be in the southern portion of the 20 cents of land, the question of suit being bad for prayer for partition does not arise at all. Accordingly, the substantial question of law No.1 is answered as against the appellant.
17. The contention before this Court that Ex.A.3 was brought about at the instance of P.W.1 and P.W.2 fraudulently, even while Savari Muthu Nadar, the executant of Ex.A.3 was insane, is purely a question of fact and it is pertinent to note that even in the substantial question of law suggested by the appellants in the grounds of appeal, there is no reference to it at all and this Court also correctly has not formulated any substantial questions of law touching upon that point, inasmuch as no substantial question of law was found emerged out of the grounds of appeal. Incidentally, I would also observe that Ex.A.3 is a registered document of the year 1979 and apparently the presumption contemplated under section 114 (e) of the Indian Evidence Act would be attracted.
18. The learned Counsel for the appellant with an endeavour to persuade this Court to formulate an additional substantial question of law, would rely upon the typed set of papers filed by him and contend that P.W.1 during cross- examination allegedly made admission as though during the year 1979-80, Savari Muthu Nadar was suffering from mental derangement. In that context, I analysed the typed set with the original deposition of P.W.1 and found that the typed set filed on the side of the appellant is not correct and that there was no admission by P.W.1. Hence, absolutely there is no necessity to frame an additional substantial question of law also.
19. Relating to the second substantial question of law regarding adverse possession, the learned Counsel for the appellant would fairly submit that the plea of adverse possession could not be countenanced at all as it was not raised and litigated as per law. Hence, in this view of the matter, that second substantial question of law does not arise.
20. In the result, in view of the ratiocination as set out supra by me, this second appeal is liable to be dismissed and accordingly, the same is dismissed. However, in the facts and circumstances of this case, there is no order as to costs.
1. The Principal District Judge, Tuticorin.
2. The District Munsif, Srivaikuntam.
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