IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.10.2008 CORAM: THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN SECOND APPEAL No.363 OF 1999 1. Jayalakshmi 2. Mohan ... Appellants/Plaintiffs vs. 1. Amirthammal (died) 2. A.Rajagopal 3. N.Kannammal ...Respondents/Defendants 1 & 2 Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 30.06.1998 in A.S.No.34 of 1997 passed by the learned second Additional District Judge, Salem District, confirming the judgment and decree dated 31.10.1996 in O.S.No.909 of 1988 passed by the learned Principal Subordinate Judge, Salem. For Appellants : Mr.K.Ramanraj For Respondents : Mr.T.Murugamanickam, for R3 No appearance for R2 J U D G M E N T The appellants are the plaintiffs. The appellants filed a suit in O.S.No.909 of 1988 on the file of the Principal Sub-Court, Salem to declare that they are having absolute possession and title to the suit property, restraining the defendants by means of a permanent injunction from in any manner interfering with the absolute possession and enjoyment of the suit property, restraining the first defendant by means of a permanent injunction from executing the decree in O.S.No.1691 of 1981 on the file of the Court of District Munsif, Salem in respect of the suit property. 2. Facts which are necessary for the disposal of this appeal are, as follows: The 2nd plaintiff is the eldest son of the 1st plaintiff, who are living together. The 1st defendant is the paternal uncle's wife of the 2nd defendant. The suit property originally belonged to Ramasamy Udayar, who is the husband of the 1st plaintiff along with other properties. Ramasamy Udayar executed a Settlement Deed dated 29.03.1958 (Ex.A16) in respect of the suit property and other properties and put the 1st plaintiff in possession of the suit property. https://hcservices.ecourts.gov.in/hcservices/ Ramasamy Udayar died on 20.10.1979 leaving behind the plaintiffs and other son and daughter as his legal heirs. It is further averred by the plaintiffs that right from the date of execution of the Settlement Deed under Ex.A16, they are in absolute possession and enjoyment of the suit property. The suit property was originally a vacant house site and the plaintiffs had put up a thatched shed on it. It is further averred by the plaintiffs that the 2nd defendant owns a tiled house south of the suit property and that the 1st defendant seemed to have obtained a decree against the 2nd defendant under Ex.A7 dated 27.10.1984 in respect of the properties situated on the southern side of the suit property. The plaintiffs became aware of the said proceedings only when the court came and demanded the plaintiffs to deliver possession of the property which was refused by them. Therefore, the plaintiffs filed a suit in O.S.No.909 of 1988 for the above said relief. 3. The 1st defendant has filed a written statement contending that the 2nd defendant had set up the plaintiffs to file a suit in order to defeat her rights and to nullify the decree passed under Ex.A7, dated 27.10.1984. The 1st defendant further contended that as per Ex.B8, decree in O.S.No.1028 of 1962, in which the 1st plaintiff's husband Ramasamy Udayar was a signatory, she was allotted the suit property and through the final decree proceedings under Ex.B9, dated 29.11.1967, she got possession of the suit property. After obtaining possession, the 1st defendant leased out the suit property to the 2nd defendant. Since he failed to vacate, she filed a suit in O.S.No.1691 of 1981 for recovery of possession and after contest, the suit was decreed on 27.10.1984 and the said decree is marked as Ex.A7. It is also contended by the 1st defendant that under Ex.A16 and the Partition Deed marked as Ex.A1, dated 04.02.1955, the widow of one of the sharers was not allotted any property and since the husband of the 1st plaintiff had voluntarily signed the Memo of Compromise, which resulted in passing of the decree under Ex.B8, it is not open to the 1st plaintiff to contend that she is the absolute owner of the suit property and she is in possession of the same. For the said reasons, the 1st defendant prayed for dismissal of the suit. The 2nd defendant namely, A.Rajagopal had remained ex parte. 4. During the course of trial, the 2nd plaintiff, who is the son of the 1st plaintiff was examined as P.W.1 and on the side of the plaintiffs, Exs.A1 to A19 were marked; on the side of the defendants, the 1st defendant was examined as D.W.1, one A.K.Chinnu was examined as D.W.2 and Exs.B1 to B10 were marked. 5. The Trial Court, on consideration of the oral and documentary evidence, has given a finding that even though the suit in O.S.No.1028 of 1962 is instituted by the 1st defendant in a later point of time to the settlement under Ex.A16 dated 29.03.1958, that by itself will not allow the plaintiffs with any right as the 1st defendant had rightly challenged the Partition Deed under Ex.A1 and obtained a decree by way of compromise, in which the husband of the 1st plaintiff was a signatory and therefore the decree obtained by them in https://hcservices.ecourts.gov.in/hcservices/ O.S.No.1028 of 1962 is valid in law. As regards the claim of compensation on the part of the plaintiffs, the Trial Court held that Exs.A3, A4 and A10 to A13 marked on the side of the plaintiffs have not established the case of the plaintiffs that they are the owners of the property at New Door No.1F and the said documents have not proved the possession on the part of the plaintiffs. The Trial Court citing these reasons has decreed the suit on 31.10.1996. Aggrieved by the judgment and decree passed by the Trial Court, the plaintiffs have preferred an appeal in A.S.No.34 of 1997 before the court of the II Additional District Judge, Salem. 6. The Lower Appellate Court after taking into consideration the materials available on record, had upheld the findings of the Trial Court and dismissed the appeal vide judgment and decree dated 30.06.1998. The present Second Appeal is preferred by the plaintiffs challenging the judgment and decree passed by the Lower Appellate Court in confirming the judgment and decree passed by the Trial Court. 7. This court, at the time of admitting the Second Appeal has formulated the following substantial questions of law: " 1. Whether the right, title and the interest of the appellants herein in respect of the suit property under the Settlement Deed dated 29.03.1958, under Ex.A16 cannot be denied or disputed by the respondents herein, without strongly and substantially identifying that the properties in the decree dated 27.10.1984 in O.S.No.1691 of 1981, under Ex.A7 and the properties described in R.E.P.No.458 of 1986 in O.S.No.1691 of 1981, under Ex.A8 dated 22.08.1986 are the same, particularly when the possession of the suit property by the appellants herein is admitted and when the first respondent herein has not proved her own possession at any point of time? 2. Whether the earlier suits in O.S.No.1028 of 1962 and O.S.No.1691 of 1981 are not valid and binding upon the appellants herein and whether they are not related or connected with the property claimed by the appellants herein the above suit?" 8. Heard Mr.K.Ramanraj, learned counsel for the appellants and Mr.T.Murugamanickam, learned counsel for the third respondent. Even though the 2nd respondent was served with notice through court and his name appears in the cause list, there is no representation on his behalf. 9. Learned counsel for the appellants submits that Ex.A16, Settlement Deed dated 29.03.1958 was executed by Ramasamy Udayar, husband of the 1st plaintiff at the earliest point of time settling the suit properties along with other properties and it was also acted upon and the 1st plaintiff took possession of the suit properties and other properties and she is in possession and enjoyment of the properties. In respect of the suit instituted by the 1st plaintiff in O.S.No.1028 of 1962, though the husband of the 1st plaintiff had signed the joint Memo of Compromise, in which the suit property came to be declared as https://hcservices.ecourts.gov.in/hcservices/ the property of the 1st defendant, the said decree is not binding on them. 9a. It is further contended by the learned counsel for the appellants that the description of the suit property is not clear and vague. The property allotted to the 1st defendant lies south of the suit property. In the absence of clear description of the suit property in Exs.B8 and B9 dated 15.10.1963 and 29.11.1967, respectively, preliminary and final proceedings in O.S.No.1028 of 1962, it is not open to the 1st defendant to claim title and possession of the suit property. It is also contended by the learned counsel appearing for the appellants that in the proceedings instituted by the 1st defendant against the 2nd defendant in O.S.No.1691 of 1981, which culminated in the decree under Ex.A7 dated 27.10.1984, the plaintiffs are not made as parties and therefore any findings given in the said proceedings are not binding on them. Therefore, the learned counsel appearing for the appellants prays for setting aside the judgment and decree passed by the court below. 10. Per contra, Mr.T.Murugamanickam, learned counsel appearing for the first respondent contended that in the Joint Compromise Memo in the suit in O.S.No.1028 of 1962, the husband of the 1st plaintiff namely, Ramasamy Udayar is the signatory, based on which, Ex.B3 decree came to be passed and thereafter, the final decree proceedings were filed in which, the property came to be delivered in favour of the 1st defendant and thereafter, he inducted the 1st defendant as the tenant and since he failed to pay the tenant and expressed his unwillingness to vacate the premises, instituted a suit in O.S.No.1691 of 1981 and based on the decree dated 27.10.1984, she took possession of the suit property and she is in possession and enjoyment of the suit property. It is further contended by the learned counsel for the first respondent that since the findings of the courts below are in accordance with law, no interference is warranted in exercise of jurisdiction under Section 100 of the Code of Civil Procedure and that there are no substantial questions of law involved for adjudication of the second appeal. 11. The court has carefully considered the submissions made by the learned counsel appearing for the appellants and learned counsel appearing for the 1st respondent, perused the materials available on record and also the original records. 12. A perusal of Ex.A16, Settlement Deed would reveal that one- third share described in page number 10 of the said document forms part of the 6th item of the vacate site in the schedule, which is subsequently settled in her favour. As per Ex.A1, Partition Deed, 6th item namely, vacant site in 'B', 'A' and 'C' Schedules have been allotted as continuous portions of all the shares respectively and the said portion has been now settled in favour of the plaintiffs by Ramasamy Udayar in Ex.A16, Settlement Deed. In the preliminary decree in O.S.No.1028 of 1962, the 1st defendant was agreed to be given one- third share in the 6th item of the Partition Deed and though as per the documents, she is entitled to 705 sq. feet, she was given a lesser extent of 696 sq. feet shown in ABCD portion in Ex.B9. The said ABCD https://hcservices.ecourts.gov.in/hcservices/ portion was allotted to the 1st defendant, who is the plaintiff in O.S.No.1028 of 1962. A perusal of Ex.A1, A16 and Ex.B9 would reveal that the portion immediately on the south of Mariamman Koil Street, which is the portion allotted to Ramasamy Udayar, husband of the 1st plaintiff under Ex.A1, Partition Deed has been allotted to the 1st defendant under the Compromise Deed passed in O.S.No.1028 of 1962. The documentary evidence adduced by the 1st defendant clearly prove the fact that the portion allotted to Ramasamy Udayar, husband of the 1st plaintiff was allotted to the 1st defendant and in pursuance of the final decree proceedings, she took possession of the property. As per the decree obtained by her under Ex.A7, the above said portions which were listed out to her by the 2nd defendant was taken possession by her pursuant to the said decree. The exhibits marked on behalf of the 1st plaintiff, namely, Ex.A3, A4, A10 to A13 have not proved or evidenced the case of the plaintiffs that they are the owners of the suit property and they are in possession. Even though the plaintiffs contend that the description of the property taken possession by the 1st defendant under Exs.B8 and B9 are not clear, the courts below on careful consideration and appreciation of the entire materials available on record held that the property allotted to the 1st defendant was definite and the misdescription if any, given in Exs.A6 to A9 does not affect the right of the 1st defendant, namely, Amirthammal. Ex.A9, Report given by the court is also relatable to the suit property. The courts below have held that in pursuance of the compromise decree, the 1st defendant has been given possession of a share of the suit property and in pursuance of the decree, she is in possession and enjoyment of the same as the owner of the suit property. 13. This court, on perusal of the judgment of the Lower Appellate Court finds that the Lower Appellate Court has independently applied its mind to the entire materials available on record and has rightly come to the conclusion that no interference is warranted in the judgment and decree passed by the Trial Court. This court had also applied its mind independently to the oral and documentary evidence and finds that the judgment and decree passed by the court below are sustainable and no interference is warranted in the exercise of the jurisdiction under Section 100 of the Code of Civil Procedure. In view of the above said reasons, the substantial questions of law formulated in the Second Appeal are answered in negative against the appellants. 14. In the result, the Second Appeal is dismissed confirming the judgment and decree passed by the courts below and in the circumstances, there will be no order as to costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ abe To : 1. The Additional District Judge, Salem District. 2. The Principal Subordinate Judge, Salem. 3. The Section Officer, VR Section, High Court of Madras, Madras. 1 cc to Mr.T.Murugamanikkam, Advocate, SR.NO.60341 1 cc to Mr. R.M.Krishna Raju, Advocate, SR.NO.60340 Judgment in Second Appeal No.363 of 1999 KA(CO) em/10.11.08 https://hcservices.ecourts.gov.in/hcservices/