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Ganapathy v/s Chandra


Company & Directors' Information:- R K CHANDRA PVT LTD [Strike Off] CIN = U36911WB1989PTC046753

Company & Directors' Information:- H CHANDRA PRIVATE LIMITED [Strike Off] CIN = U65990MH1952PTC008894

Company & Directors' Information:- H C CHANDRA & CO. PVT LTD [Strike Off] CIN = U20231WB1957PTC023337

Company & Directors' Information:- CHANDRA AND COMPANY PRIVATE LIMITED [Dissolved] CIN = U74999KL1952PTC000280

Company & Directors' Information:- R. CHANDRA LIMITED [Not available for efiling] CIN = U99999MH1953PLC009175

    S.A. No. 38 of 2020

    Decided On, 22 January 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE K. KALYANASUNDARAM

    For the Appellant: S. Krishnasamy, Advocate. For the Respondent: J. Sudhakaran, Advocate.



Judgment Text


(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree in A.S.No.6 of 2015, dated 31.08.2017 on the file of the Principal Subordinate Judge, Villupuram, confirming the judgment and decree in O.S.No.462 of 2020, dated 24.07.2014, on the file of Principal District Munsiff, Villupuram.)

1. This appeal has been preferred by the unsuccessful plaintiff in O.S.No.462 of 2010. The said suit was filed for declaration and for recovery of possession.

2. It is the case of the plaintiff that the suit schedule property originally belonged to one Ponnambala Achari. He had three sons viz., Saminatha Achari, Namachivaya Achari and Sababathy Achari. In a registered partition deed, dated 25.05.1954, 'A' schedule property was allotted to Saminatha Achari, 'B' schedule property was allotted to Namachivaya Achari, 'C' schedule property was allotted to Sababathi Achari and 'D' schedule property was allotted to their father Ponnambala Achari and he had life interest over 'D' schedule property and thereafter, item Nos. 1 to 8 in 'D' schedule property would devolve on Saminatha Achari and Namachivaya Achari, while Sababathi Achari can take possession of item Nos.9 and 10 in 'D' schedule property.

3. The plaintiffs further stated that Ponnambala Achari died 40 years ago and thereafter, as per the partition deed, dated 25.05.1954, Item Nos.1 to 8 in 'D' schedule property was enjoyed by Saminatha Achari and Namachivaya Achari, which has an extent of 0.70 acres. After the death of Namachivaya Achari, his son Rasu Achari enjoyed the properties in 'D' schedule item Nos. 1 to 8 and on 05.09.2001, he sold the property to the plaintiff's mother Jayalakshmi for a sale consideration of Rs.40,000/-. In pursuance of the sale, the plaintiff's mother enjoyed the property and executed the settlement deed, dated 25.11.2002 in favour of the plaintiff. On the date of the settlement deed, possession was handed over to the plaintiff, but while measuring the suit properties on 31.05.2010, he found out that instead of 0.68 acres, only 0.50 acres were available. On verification, the plaintiff came to know that on 09.01.1990, Ramalinga Achari, son of Saminatha Achari sold the property. Hence, the suit.

4. The suit was resisted by the defendant contending that after the death of Ponnambala Achari, his sons Saminatha Achari and Namachivaya Achari were in possession and enjoyment of the property. It is further stated that Ramalinga Achari and Rajavel Achari, sons of Saminatha Achari, were in possession and enjoyment of 55 cents in S.Nos.327/2, 327/1 and 327/3. Rasu Achari, son of Namachivaya Achari was in possession and enjoyment of 51 cents in Survey Nos.328/3 and 328/4. On 09.01.1990, the said Ramalinga Achari and Rajavel Achari, sold 55 cents by way of registered sale deed for a sum of Rs.11,000/-. In the sale deed, Rasu Achari is an attesting witness. On the same day, Rasu Achari sold 51 1/2 cents to the defendant, which was attested by Ramalinga Achari, son of Saminatha Achari. Since the entire property items 1 to 8 in 'D' schedule property were already sold to the defendant, Rasu Achari has no right to sell the same property to the plaintiff's mother on 05.09.2001 and prayed for dismissal of the suit.

5. On the basis of the above pleadings, the trial Court framed necessary issues. On the side of the plaintiff, P.W.1 to P.W.4 were examined and Exs.A1 to A7 were marked. On the side of the defendant, D.W.1 to D.W.3 were examined and Exs.B1 to B18 were produced.

6. The trial Court on appreciation of evidence, held that the plaintiff is not entitled for the relief sought for in the suit. The plaintiff has taken up the matter by way of Appeal in A.S.No.6 of 2015. The appellate Judge, concurred with the findings of the trial Court and hence, the present appeal.

7. Mr.S.Krishnaswamy, learned counsel for the appellant would argue that as per the partition deed, dated 25.05.1954, Saminatha Achari and Namachivaya Achari are entitled to get items 1 to 8 in 'D' schedule property equally. But, the son of Namachivaya Achari had sold larger extent. He further added that the plaintiff's mother Jayalakshmi Ammal purchased the suit schedule property under Ex.A2, sale deed, dated 05.09.2001 and therefore, the plaintiff is entitled to succeed in his suit, but the Courts below, without properly appreciating the oral and documentary evidence, non-suited him and hence, they are liable to be set-aside.

8. I have heard the submission of the learned counsel for the appellant and perused the materials available on record.

9. In the case on hand, it is not disputed that the suit schedule properties were originally owned by Ponnambala Achari. It is also not disputed under Ex.A1, a family partition was entered into between the said Ponnambala Achari and his three sons, where under 'A' schedule property was allotted to Saminatha Achari, 'B' schedule property was allotted to Namachivaya Achari and 'C' schedule property was allotted to Sababathi Achari. Controversy surfaced only over items 1 to 8 in 'D' schedule property.

10. It is the case of the plaintiff that after the demise of Ponnambala Achari, his sons Saminatha Achari and Namachivaya Achari had been enjoying item Nos. 1 to 8 in 'D' schedule property. The plaintiff would contend that on 05.09.2001, Rasu Achari, son of Namachivaya Achari sold 'D' schedule properties in item Nos.1 to 8 for himself and on behalf of the minor son to the plaintiff's mother Jayalakshmi Ammal for a sale consideration of Rs.40,000/-. Pursuant thereto, the plaintiff's mother enjoyed the property and later settled the same in favour of the plaintiff on 25.11.2002. The sale deed and settlement deed were marked as Ex.A1 and Ex.A2.

11. On the other hand, it is contended that sons of Saminatha Achari and Namachivaya Achari sold the entire properties in item Nos.1 to 8 in 'D' schedule property to the defendants vide registered sale deed, dated 09.01.1990. A Perusal of Exs.B2 and B3 sale deeds, dated 09.01.1990 would reveal that Ramalinga Achari and Rajavel Achari, sons of Saminatha Achari sold 55 cents in Survey Nos.327/1, 327/2 and 327/3 in favour of the defendant and Rasu Achari had sold 0.51 1/2 cents in Survey Nos.383/3 and 328/4 in favour of the defendant. In both the sale deeds, the sons of Saminatha Achari and Namachivaya Achari have signed as attesting witnesses. Exs.B8 to B18 were marked to show that the entire suit property has been in possession and enjoyment of the defendant, since 1990.

12. The trial Court and the appellate Court, on proper evaluation o

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f evidence, came to the right conclusion that after selling the entire suit schedule property under Exs.B2 ad B3, Rasu Achari has no right to sell 'D' schedule property in favour of the plaintiff's mother Jayalakshmi Ammal. 13. Taking note of the fact that the entire suit property was sold in the year 1990, the contention of the learned counsel for the appellant that the said Rasu Achari had sold larger extent has no substance. In my view, the factual finding arrived by the Courts below warrant no interference and no substantial question of law arises for consideration in this appeal. 14. For the reasons stated supra, the Second Appeal fails and the same is dismissed. However, there shall be no order as to costs.
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