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Veluchamy Chettiar (died) v. Shanmugavadivammal - SECOND APPEAL No.28 of 1992  RD-TN 425 (2 July 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON'BLE MR.JUSTICE K.GOVINDARAJAN
SECOND APPEAL No.28 of 1992
1.Veluchamy Chettiar (died)
rep.by mother next friend 4th appellant
Appellants 4 to 7 brought on record
as LRs of the deceased 1st appellant
as per order of court made in CMP.No.17473/98
by DR dated 1.2.99. ..... Petitioners VS.
4.Lakshmiammal ..... Respondents Appeal against the judgement and decree dated 27.09.1991 and made in A.S.No.51/87 on the file of the Subordinate Judge, Tenkasi reversing the judgement and decree dated 13.03.1987 made in O.S.No.196/1983 on the file of the District Munsif's court, Sankarankovil.
For Appellant : Mr.P.Peppin Fernando
For Respondent 1 :Mr.T.R.Rajaraman
For Respondents2 to 4: N.A.
:J U D G E M E N T
Defendants 2 to 4 filed the above second appeal having aggrieved by the reversing judgement and decree of the lower appellate court ( Sub-Curt, Tenkasi ) in A.S.No.51/87.
2. The plaintiff/first defendant filed the suit in O.S.No.196/83 on the file of the District Munsif Court, Sankarankovil for partition of his ¼ share and another 5/7 of ¼ share. According to the plaintiff , she filed the suit on the basis of Exs.A2 and A3.
3. The appellants contested the suit contending interalia that the suit property was purchased from the original owner viz., Azhagammal @Azhagu Pillai for a sum of Rs.90/- in the year 1933 in favour of her sister Guruvammal under Ex.A7, that the said Guruvammal retained the suit property and gave the eastern property and the house to the first defendant by way of gift. After the death of Guruvammal the first defendant inherited the suit property. The first defendant under Ex. A4 sold the suit property to the defendants 2 to 4. According to the defendants in the said document the plaintiff's father has attested. On That basis, the defendants have come forward with the plea that the plaintiff cannot claim any right in the suit property.
4. The trial court accepting the case of the defendants 2 to 4 dismissed the suit. The plaintiff filed appeal in A.S.No.51/87 on the file of the Sub-court, Then Kasi. The learned Subordinate Judge without even discussing the correctness of the findings given by the trial court simply set aside the judgement and decree of the trial court and allowed the appeal and hence the present second appeal.
5. The substantial questions of law that were framed at the time of admission of this second appeal are as follows:
1.Whether the right to possession of the suit property can be claimed on the death of a female Hindu (Alagammal alias Alagu Pillai) after a lapse of 49 years?
2.Whether the suit claim is barred under the deeming provision of explanation (b)to Article 65 of the Limitation Act?
3.Whether the appellants have perfected title to the suit property by adverse possession in view of their enjoyment right from 1933?
4.Whether the plaintiff is estopped from claiming title over the suit property in view of the admission of title of appellants in Ex.B4 and B5 dated 10.12.1973 by plaintiff's mother, especially
when she is alleged to be one of the vendor under Ex.A3, under which the plaintiff claims title over the suit property?
5.Whether the plaintiff is estopped from claiming title over the suit property in view of the admission of plaintiff's father about the appellant's title under Ex.B3, in view of the appellant's specific defence that the suit has been filed by the plaintiff
at the instigation of the plaintiff's father, who is the 6th defendant in the suit, and who remained exparte in the proceedings?
6. The trial court accepting the case of the defendants 2 to 4 regarding the oral sale in 1933 in favour of Guruvammal found that on the basis of the said oral sale Exs.B3,B5, B6 and B43 were executed and the correctness of the same had been accepted by P.W.1. On that basis, the trial court has found that the plaintiff had purchased the property under Ex.A2 knowing that the defendants 2 to 4 are the owners of the property. It is also found that the case was filed only at the instance of the 6th defendant the father of the plaintiff. It is also found that the plaintiff had not established the purchase from all the legal heirs of Koppuli @ Muthukaruppayee under Ex.A2. The said finding was given on the basis of evidence of D.W.3. But unfortunately, the lower appellate court without even discussed those evidence and without even setting aside the said findings simply found that defendants 2 to 4 have not established the oral sale. The findings given by the trial court had not been set aside by the lower appellate court, even with respect to the specific finding of the trial court that the plaintiff has not purchased from all the legal heirs Koppuli @ Muthukaruppayee. Since the lower appellate court has failed to appreciate the oral and documentary evidence especially when it is reversing the judgement of the trial court. Further the lower appellate court failed to appreciate the correctness of the findings given by the trial court and hence I am inclined to set aside the same and remand the matter to the lower appellate court for fresh disposal in accordance with law .
7. Accordingly the judgement and decree of the lower appellate court is set aside and the matter is remitted back to the Subordinate Court, Thenkasi with a direction to decide the appeal within three months from the date of receipt of copy of the order. With the above observation, the second appeal is allowed. No costs.
1.The Subordinate Judge, Tenkasi (with records). 2.The District Munsif Court, Sankarankovil.
3.The Record Keeper, V.R.Section, High Court, Madras-104. K.GOVIDARAJAN, J.,
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