IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.556 of 2003 1. Santhya 2. Yuvaraj 3. Priya 4. Minor Dharanikumar, rep. by his father and guardian M.Gunasekaran .. Appellants /Appellants Plaintiffs Vs. 1. Ravichandran 2. Sridharan 3. S.Thyagarajan 4. S.Bhupathy 5. S.Hariharan 6. S.Murugan 7. S.Nalini Devi .. Respondents /Respondents 2 to 8 Second Appeal filed under section 100 of CPC Lrs. Of the deceased defendant against the judgment and decree dated 28.6.2002 in A.S.No.38 of 1991 on the file of the Subordinate Court, Kancheepuram, against the judgment and decree dated 16.4.1991 in O.S.No.444 of 1989 on the file of the Additional District Munsif Court, Kancheepuram. For appellants : Mr.A.Muthukumar For respondents: Mr.S.Gajendran JUDGMENT The Second Appeal is filed by the plaintiffs against the judgment and decree dated dated 28.6.2002 in A.S.No.38 of 1991 on the file of the Subordinate Court, Kancheepuram, confirming the judgment and decree dated 16.4.1991 in O.S.No.444 of 1989 on the file of the Additional District Munsif Court, Kancheepuram. 2. The averments in the plaint are as follows: The suit properties originally belonged to plaintiffs' grandmother Rajeswari Ammal. She executed a registered settlement deed in favour of the plaintiffs with reference to the front 'koradu' portion, measuring 8'9" north to south and 24-1/2' east to west and https://hcservices.ecourts.gov.in/hcservices/ 60' north to south and 24-1/2' east to west to the north of 'koradu' portion. The remaining northern portion has been retained by the said Rajeswari Ammal. The 'koradu' portion is marked as ABCD and front portion is marked as CDEF. The said Rajeswari Ammal seems to have executed a sale agreement in favour of the defendant's son, wherein the portion of the plaintiffs excluding and remaining northern portion was sought to be sold. The defendant has taken the sale deed in her name. The defendant has no manner of right to the schedule mentioned properties. The defendant attempted to interfere with the plaintiffs' peaceful possession and enjoyment of the schedule mentioned properties and her conduct is highly deplorable. When the plaintiffs attempted to interfere, which was successfully prevented. The plaintiffs apprehend that at any time, the defendant will interfere in possession. Hence, the plaintiffs have come forward with the suit for permanent injunction restraining the defendant and her men from in any way interfering with the plaintiffs' peaceful possession and enjoyment of the schedule mentioned properties. They prayed for a decree. 3. The gist and essence of the written statement filed by the defendant (since deceased) are as follows: It is true that the suit properties originally belonged to Rajeswari Ammal, the grandmother of the plaintiffs. She executed a registered settlement deed with reference to the front portion of Door No.57, Malayala Street, Kancheepuram. But the measurements are not correct. After executing the settlement deed in favour of the plaintiffs with regard to the front portion, Rajeswari Ammal was in possession and enjoyment of the remaining northern portion. The defendant never attempted to interfere with the plaintiffs' possession. There is no cause of action. The plaint is silent with regard to the aspect as to how the plaintiffs having a right over the schedule mentioned properties. Without specific pleading that the claim of the right over the suit properties, the plaint is not maintainable either in law or on facts. The suit has been filed only by Gunasekaran to gain unlawful income and to grab the suit properties from the defendant by concocting a document in the name of the rectifying deed, dated 10.4.1989 and filed this vexatious suit. T.S.No.1421 in Malayala Street, bearing No.57, was originally owned by one Rajeswari Ammal and north to south measurement of T.S.No.1421, is 138' and east to west measurement is 29', bounded on south by Malayala Street, west by Municipal Narasam, north by Kishta Pillai's back-yard and Municipal Narasam and east by Pandari Pillai's house. The said Rajeswari Ammal executed settlement deed dated 22.11.1984 and she settled to the plaintiffs an extent of 60' north to south and 21-3/4' east to west, consisting of 'koradu' 8-3/4' north to south, abutting the Street and built portion 51-1/4' north to south immediately north of it. So, the said Rajeswari Ammal settled 60' including 'koradu' on the plaintiffs on 22.11.1984. She reserved a path-way on the easternmost portion, measuring 6-1/4' to enable her to use the retained portion in the back-yard. https://hcservices.ecourts.gov.in/hcservices/ 4. It is further stated in the written statement that on 21.4.1986, the said Rajeswari Ammal entered a sale agreement with the defendant's son Ravichandran as per Document No.4 filed along with the plaint. She has agreed to sell the entire northern portion retained by her in Door No.57 in T.S.No.1421. On 1.9.1988, the said Rajeswari Ammal sold in favour of the defendant, the entire back-yard portion, north of the property settled to plaintiffs, measuring 28' east to west, 87' north to south, i.e. 2525 Sq.Ft., including path- way (tHp eil ghj;ak;) in the front portion measuring 3' east to west and 60' north to south from Malayala Street to back-yard portion. Rajeswari Ammal has not retained any portion in T.S.No.1421. She has settled southern 60' to the plaintiffs and sold northern 87' to the defendant. In her sale deed, it was specifically mentioned that, @Fznrfh; tifawh ghf kidf;F@ and so, the averment has been clearly proved that she sold the property what she has retained after the execution of the settlement deed. The rectification deed is concocted and created for the purpose of filing of the suit. Hence, there is no cause of action for the suit. Hence, she prayed for dismissal of the suit. 5. The trial Court, considering the averments in the plaint and in the written statement, framed six issues and considering the oral and documentary evidence, namely Exs.A-1 to A-4, Exs.B-1 to 9, Exs.C- 1 and C-2, and the evidence of P.W.1 and D.W.1, dismissed the suit. Against that, the plaintiffs preferred appeal. The first appellate Court, after hearing the arguments of both the counsel, has framed two points for consideration and concurred with the findings of the trial Court and dismissed the appeal. Against that, the present Second Appeal has been preferred by the plaintiffs. 6. At the time of admission of the Second Appeal, the following substantial question of law was framed for consideration: "Whether both the Courts were right in the construction they placed on Ex.A-1?" 7. Substantial question of law: The appellants as plaintiffs filed the suit for bare injunction stating that as per Ex.A-1 gift settlement deed and Ex.A-2 gift arrangement deed, the suit properties belong to the plaintiffs. The defendant who is the purchaser of the remaining portion, has attempted to interfere. Hence, they filed the suit. 8. The defendant (since deceased) resisted the suit stating that she purchased the properties under Ex.B-1 sale deed and hence, she is the owner of the properties. The said Rajeswari Ammal never retained at the time of execution of Ex.B-1 any portion of the properties and Ex.A-2 is not true document and prayed for dismissal of the suit. 9. The trial Court, after framing necessary issues and considering the oral and documentary evidence, dismissed the suit. The first appellate Court also concurred with the findings of the https://hcservices.ecourts.gov.in/hcservices/ trial Court. Against that, the plaintiffs have come forward with the present Second Appeal. 10. Learned counsel for the appellants-plaintiffs would contend that the suit properties were originally owned by Rajeswari Ammal, who is none other than the grandmother of the appellants-plaintiffs. Since the plaintiffs were minors, their father, as guardian, filed the suit. As per Ex.A-1, they are entitled to 27-1/2' x 60' out of 27-1/2' x 139', 'theru koradu' measuring 21-1/4' east-west and 8-3/4' south-north, house measuring 21-1/4' east-west and 51-1/4' north- south and right of path-way of 6-1/4' east-west and 60' was also given. She retained the remaining portion. She entered into a sale agreement as per Ex.A-3 with the defendant's son and at that time, she entered into sale in respect of 27-1/2' east-west x 79' north- south. But in Ex.B-1 sale deed, it was mentioned that 27-1/2' x 87'. After Ex.B-1 sale deed, he executed Ex.A-2 in respect of 24-1/2' east-west x 8-3/4' north-south vacant portion side with 'thatodu kattidam'. Since the defendant attempted to interfere, the plaintiffs filed the suit. The first appellate Court and the trial Court have not considered these aspects and hence, he prayed for allowing the Second Appeal. 11. Learned counsel for the respondents (legal representatives of the deceased-defendant) would contend that it is true that the plaintiffs' grandmother is the owner of the properties. She is having north-south 139' and east-west 27-1/2'. So, out of that, as per Exs.A-1 and B-2, the said Rajeswari Ammal executed the settlement deed in favour of the appellants-plaintiffs only in respect of north- south 60' and the remaining is 79' and so that has been purchased by the defendant (since deceased) under Ex.B-1, and hence, the trial Court and the first appellate Court considered these aspects and came to the correct conclusion. Moreover, in Ex.B-1, it was clearly mentioned as one of the boundaries is the property settled in Ex.A-1, on the date of execution of Ex.B-1, and she has not retained any property and so, Exs.A-2 and B-9 have been created for the purpose of the case. It will not confer any right to the appellants-plaintiffs. So, the trial Court and the first appellate Court considered these aspects and came to the correct conclusion. He prayed for dismissal of the Second Appeal. 12. It is an admitted fact that Rajeswari Ammal is the owner of the properties. She is the owner of 27-1/2' east-west and 139' north- south. In Ex.A-1 settlement deed, it was specifically mentioned that @///,jd; kj;jpapy; cs;s kid tPL 1f;F fp/nk 27?1-2 t/bj. Mrbyhj;j thy; tPr;R 139 mo cs;s mokida [k; mjpy; fl;oapUf;Fk; jl;nlhJ fl;Lf;nfhg;g[ tPl;oYk;/////@. So, the total extent is 27-1/2' x 139'. As per Ex.A-1, she has settled 27-1/2' east-west and 60' north- south and in that 21-1/4' east-west and 8-3/4' north-south containing "therukuradu" (bjUf;FuLk;) and 21-1/4' east-west and 51-1/4' north- south tiled house, including southern most wall and the right of path-way in 6-1/4' east-west x 60' has been reserved by the mother Rajeswari Ammal. In Ex.A-1, it is stated as follows: https://hcservices.ecourts.gov.in/hcservices/ @/////,jd; kj;jpapy; cs;s kid tPL 1f;F fp/nk 27?1-2 mo t/bj/ mrbyhj;j thy; tPr;R 139 mo cs;s mokida[k; mjpy; fl;oapUf;Fk; jl;nlhL fl;Lf;nfhg;g[ tPl;oYk; ehd; (gpd;gf;fk;) epWj;jpf; bfhz;l ghfk;nghf bjU gf;fk; fp/nk/ 27?1-2 mo t/bj/ 60 mo bfhz;l mokida[k; ,jpy; fp/nk/ 21?1-4 t/bj/ 8///3-4 mo bfhz;l bjUf;FuLk; fp/nk/ 21?1-4 t/bj/ 51?1-4 mobfhz;l br';fy; nrh; fye;j Rth; jl;nlhL fl;Lf;nfhg;g[ tPL. bjd;dz;il jha; Rth; cs;gl rfy fl;ol rhkhd;fSk;. bjUgf;fk; fp/nk/ 6?1-4x60 moapy; gpd;ghf!;jh; nghf tu tHp eil ghj;jpak; tpl;Ltl ntz;oaJ////@ 13. After Ex.A-1, the said Rajeswari Ammal entered a sale agreement as per Ex.A-3. In Ex.A-3, she has stated the extent of property as 27-1/2' east-west and 79' north-south. In Ex.A-3, she has stated as follows: @/////Fznrfud; tifawh kid tPL nghf vd; ghf kid tPlhdJ gpd; gf;fk; fp/nk/ mo 27?1-2 t/bj/ mo 79 vGgj;bjhd;gJ mst[s;s mokida[k; jl;nlhL tpLk; fpzUk; bjUtpypUe;J j';fs; tPl;Lf;Fg; nghf tu fp/nk/ mo 3 cs;s bghJ tHpeil ehuhrKk; cs;gl/@ 14. In pursuance of Ex.A-3, she executed Ex.B-1 sale deed in favour of the defendant. In Ex.B-1, the extent of the property is stated as 87' north-south and 29' east-west. In Ex.B-1, it is stated as follows: @/////nlhh; be/57 lt[d; rh;nt be/1421 cs;s kid tPL 1f;F fp/nk/ mo 27?1-2 t/bj/ Mo 139 cs;sjpy; Kd;gf;fk; bjU ghfk; M.Fznrfud; tifawh ghfk; kid tPL FwL eP';fshf 60 mo nghf gpd;gf;fk; tl tz;il ghfk; fp/nk/ mo Kdprpgy;!;bf$l;go ehuhrk; cs;gl 29 t/bj mo Rkhh; 87 cs;s mokida[k; mjpy; fl;oapUf;Fk; jl;nlhL fl;Lnfhg;g [ fl;olKk; rfy fl;ol rhkhd;fSk; cs;gl fpzh; cs;gl kid tPLk; fPHz;il gf;fKs;s 3 mo ehuhr ghj;jpaKk; mjhtJ Kd;gf;fk; bjUtpypUe;J g[wf;fil nfhotiu nghf tu tHp eil ehuhr ghj;jpak; cs;gl ,e;j ehuhrj;jpy; Kd;ghf!;j;jUf;F vt;tpj ghj;jpaKkpy;yiy///@ 15. The original document of Ex.B-1 has not been filed. The registered copy has also not been filed. Admittedly, the entire extent is 139'. She has settled 60' as per Ex.A-1. The remaining is only 79'. But in Ex.B-1, the extent is stated as 87'. So, the measurement is not correct. Moreover, it is pertinent to note that Ex.B-1 is only a xerox copy of the sale deed. In that, 87' has been interpolated. In Ex.A-1, it was specifically mentioned that she settled the property 27-1/2' x 60'. So, the remaining is only 79'. Moreover, in Ex.A-1, she has specifically stated the extent as 60', including 'theru koradu' (bjUf;FuLk;) measuring 21-1/4' east-west and 8-3/4' north-south and tiled house measuring 21-1/4' east-west and 51-1/4' north-south. Thus, it means that she has settled north-south 60'. 16. The admitted case of both parties is that the total extent north-south is 139' and the remaining extent is only 79'. In such circumstances, while considering Ex.B-1, the extent is stated as 87' north-south. How they arrived at 87' has not been proved. Moreover, in Ex.B-1, there are interpolations, i.e. after the words @Kd;gf;fk; bjUghfk; Fznrfud; tifawh ghfk; kiz tPL@. the words @FwL eP';fshf 60 mo@ have been https://hcservices.ecourts.gov.in/hcservices/ interpolated and after that, it is stated as @nghf gpd;gf;fk; tltz;il ghfk; fp/nk/ mo Kdprpgy;!; bf$l;go ehuhrk; cs;go 29 t/bj/ mo@ and after that, the words @Rkhh; 87@ also have been interpolated. Rajeswari Ammal has not mentioned that she has retained some property. 17. At this juncture, it is appropriate to consider Ex.A-2. Ex.A-2 is the gift arrangement deed. In that, Rajeswari Ammal has mentioned that she was retaining 8-3/4' north-south and 24-1/2' east- west. Ex.A-2 has come into existence after Ex.B-1. Ex.B-1 is dated 1.9.1986. Ex.A-2 is dated 10.4.1989. 18. At this juncture, it is appropriate to consider the document filed by the defendant, i.e. after her purchase, the defendant (since deceased) mortgaged the property under Ex.B-3 in the Co-operative Bank. She has given the plan therein. The mortgage deed has been marked as Ex.B-3, dated 23.12.1986. 19. There is a dispute between both the plaintiffs and the defendant in respect of property mentioned in Ex.A-2 and a complaint has also been given, which has been marked as Ex.B-7. Acknowledgment receipt has been marked as Ex.B-8. So, the only dispute is in respect of Ex.B-9 = Ex.A-2 regarding east-west 24-1/2' and north-south 8- 3/4'. But the clinching documents are Exs.A-1 and B-1. After Ex.A-1 dated 22.11.1984, Ex.B-1 dated 1.9.1986 came into existence. The boundaries are clearly mentioned that Rajeswari Ammal has not retained any property while she executed Ex.B-1 in favour of the defendant. 20. In the abovesaid circumstances, after the dispute only, Ex.A-2 has come into existence. So, I am of the opinion that the trial Court and the first appellate Court have correctly considered Exs.A-1 and B-1 and came to the correct conclusion that the said Rajeswari Ammal had not retained any portion after the execution of Ex.B-1. The substantial question of law is answered accordingly. 21. As discussed supra, I am of the opinion that the trial Court and the first appellate Court have considered all the aspects in proper perspective and came to the correct conclusion. The findings of both the Courts below do not warrant any interference. Hence, the judgment and decree of both the Courts below are liable to be confirmed. 22. In fine, the Second Appeal is dismissed. The judgment and decree of both the Courts below are hereby confirmed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar cs https://hcservices.ecourts.gov.in/hcservices/ To 1.The Subordinate Judge, Kancheepuram. 2.The Addl. District Munsif, Kancheepuram. 3.The Section Officer, V.R.Section, High Court, Madras. 1 cc to Mr.S.Gajendran, Advocate, Sr.No.1382 1 cc to Mr.A.Muthukumaran, Advocate, Sr.No.1095 Judgment in S.A.No.556 of 2003 SP (CO) SS (22.01.2010) https://hcservices.ecourts.gov.in/hcservices/