IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.4.2010 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.No.897 of 2009 K.M.Periyasamy .. Appellant /Plaintiff -Vs- R.Ramasamy .. Respondent/Defendant Prayer: This Second Appeal is filed under section 100 of C.P.C against the judgment and decree passed in A.S.No.104 of 2008 dated 11.12.2008 on the file of Principal District Court, Erode, Erode District confirming the judgment and decree passed in O.S.No.87 of 2007 dated 20.9.2007 on the file of Principal District Munsif Court, Erode, Erode District. For appellant : Mr.V.Bharathidasan For Respondent : Mr.A.K.Kumarasamy ----- JUDGMENT The plaintiff in the original suit before the trial Court is the appellant in the second appeal. The appellant herein filed O.S.No.87 of 2007 against the respondent herein on the file of the District Munsif Court, Erode for a declaration of the appellant/plaintiff's title to the suit property described in the plaint schedule and for a consequential injunction restraining the respondent/defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit property. The suit was tried by the Principal District Munsif, Erode and at the end of trial, the same was dismissed by a judgment and decree dated 20.9.2007. Challenging the judgment and decree of the trial Court dismissing the suit, the appellant herein preferred an appeal on the file of the Principal District Judge, Erode in A.S.No.104 of 2008. The Principal District Judge, Erode by judgment dated 11.12.2008 confirmed the decree passed by the trial Court and dismissed the appeal preferred by the appellant herein. As against the judgment and decree of the lower appellate Court dated 11.12.2008 made in A.S.No.104 of 2008, the appellant has brought forth the present second appeal on various grounds set out in the memorandum of appeal. 2.The arguments advanced by Mr.V.Bharathidasan, advocate on behalf of the appellant were heard. The records produced in the form of typed set were also perused. https://hcservices.ecourts.gov.in/hcservices/ 3.The present second appeal has been preferred against the concurrent judgments of Courts below under Section 100 of the Civil Procedure Code. A second appeal from the first appellate Court shall lie only on a substantial question of law. Therefore, the appellant herein/plaintiff has to satisfy the Court that the appeal involves a substantial question of law to be resolved by this Court. In order to decide the question as to whether there is any substantial question of law involved in the second appeal and whether the appellant/plaintiff has formulated any substantial question of law and incorporated in the memorandum of grounds of appeal, it becomes necessary to refer to the facts of the case in brief. 4.Marappa Gounder @ Rakkiaya Gounder and Ponkaliappa Gounder were brothers. Both of them are no more. Ponkaliappa Gounder died interstate on 29.12.2000. Plaintiff is the son of Marappa Gounder @ Rakkiaya Gounder. Thus, the deceased Ponkaliappa Gounder was the junior paternal uncle of the appellant / plaintiff. Both Marappa Gounder @ Rakkiaya Gounder and his brother Ponkaliappa Gounder had ancestral undivided properties, which forms the northern part of Survey Nos.308, 309 and 310 at Elamathur Village, Erode Taluk and Erode District. An extent of 37 cents forming the southern part of the above said survey numbers was purchased jointly by Ponkaliappa Gounder and his brother Marappa Gounder @ Rakkiaya Gounder from third parties under a sale deed dated 03.10.1955. Thus, Ponkaliappa Gounder and his brother Marappa Gounder @ Rakkiaya Gounder were jointly entitled to a total extent of one acre and four cents in the above said survey numbers, out of which 0.17 acres alone is shown to be the suit property. Out of the total extent of one acre and four cents, Marappa Gounder @ Rakkiaya Gounder (father of the appellant / plaintiff) was entitled to 52 cents and Ponkaliappa Gounder was entitled to 52 cents. Out of the 52 cents belonging to Ponkaliappa Gounder, an extent of 35 cents was purchased by the plaintiff under a sale deed dated 31.8.1995, marked as Ex.A1. The balance 17 cents was purchased by the respondent/defendant under a sale deed dated 30.8.1996, marked as Ex.B2. Thus, the entire share owned by Ponkaliappa Gounder in the suit survey numbers was sold by him to the appellant/plaintiff and the respondent/defendant on 31.8.1995 and 30.8.1996 respectively. 5.But the appellant/plaintiff has come forward with the suit contending that what was sold under Ex.A1 sale deed dated 31.8.1995 was comprised of the 17 cents referable to the share of Ponkaliappa Gounder out of the property purchased under the sale deed dated 03.10.1955 and 18 cents out of the share of Ponkaliappa Gounder in the ancestral property, leaving a balance of 17 cents in the ancestral property. It is the further contention of the appellant/plaintiff that the balance extent of land measuring 17 cents forming part of the share of Ponkaliappa Gounder in the ancestral property alone is the subject matter of the suit. According to the plaintiff, the said 17 cents was under the possession and enjoyment of the appellant / plaintiff and his ancestor for over 50 years to the knowledge of Ponkaliappa Gounder https://hcservices.ecourts.gov.in/hcservices/ and the appellant / plaintiff has thus perfected title by adverse possession to the suit property measuring 17 cents, which is part of the total extent of one acre and four cents comprised in S.Nos.308, 309 and 310. He has contended further that Ponkaliappa Gounder, during his last days, was not in sound disposing state of mind and the respondent/defendant took Ponkaliappa Gounder away from the custody of the plaintiff's family with a view to create a fraudulent document and obtain the property of the plaintiff by coercion and undue influence; that the said Ponkaliappa Gounder died intestate on 29.12.2000 and that the respondent/defendant, who seems to have created some document attempted to dispossess the plaintiff on 20.1.2007 claiming that he was entitled to the suit property and thus he was constrained to file the suit for declaration and injunction. 6.The respondent/ defendant has come forward with a plea that the deceased Ponkaliappa Gounder was entitled to a common share of 52 cents in the suit Survey Nos.308,209 and 310, out of which 35 cents formed a share in the ancestral property and 17 cents formed the share in the property acquired under the sale deed dated 03.10.1955; that a portion of the share of Ponkaliappa Gounder extending 35 cents was sold to the plaintiff under Ex.A1 dated 31.8.1995 and the remaining extent of 17 cents was sold under Ex.B2 on 30.8.1996 to the respondent/defendant and that the respondent/defendant was put in possession of the portion, which was sold to him by Ponkaliappa Gounder under Ex.B2. The respondent/defendant contended further that the claim of adverse possession by the plaintiff against a co-owner was untenable and that the claim of his adverse possession for over 50 years should be negatived based on the simple fact that the plaintiff had chosen to purchase 35 cents out of the 52 cents belonging to the Ponkaliappa Gounder under Ex.A1 sale deed. 7.It is an admitted fact that Ponkaliappa Gounder and his brother Marappa Gounder @ Rakkiaya Gounder got about 67 cents in common as their share in their ancestral property comprised in S.Nos. 308,309 and 310 of Elamathur Village. It is also not in dispute that both of them jointly purchased another extent of 37 cents in the same survey numbers under a sale deed dated 03.10.1955 and thus both of them were jointly entitled to an extent of one acre and four cents comprised in the above said survey numbers. The total extent owned by Ponkaliappa Gounder and his brother in the suit survey numbers has been candidly admitted by PW1. It is also not in dispute that each one of them was entitled to a common share of 52 cents. It is also an admitted case of the appellant / plaintiff that out of the 52 cents belonging to Ponkaliappa Gounder, plaintiff purchased 35 cents under Ex.A1 sale deed dated 31.8.1995. Appellant/plaintiff does not claim that the balance 17 cents belonging to Ponkaliappa Gounder was either purchased by him from Ponkaliappa Gounder or settled on him by Ponkaliappa Gounder. On the other hand, he would contend that he had perfected title by adverse possession regarding the above said balance 17 cents. https://hcservices.ecourts.gov.in/hcservices/ 8.Even as per the case of the appellant/plaintiff, there was no partition between Ponkaliappa Gounder and his brother Marappa Gounder @ Rakkiaya Gounder. It is also not the case of the plaintiff that a partition was effected between himself and his brother Marappa Gounder @ Rakkiaya Gounder prior to the date of Ex.A1 sale deed. Ex.A1 sale deed is dated 31.8.1985. In Ex.A1 Ponkaliappa Gounder purported to convey 35 cents of land to the plaintiff excluding the portion over which he was having a farm house and the land abutting there to. While describing the property sought to be sold under Ex.A1 he has described it as 35 cents defined with boundaries out of his common share of 52 cents in an extent of 1.04 acres. While narrating the source of his acquisition, he has stated in the said sale deed that the property belonged to him ancestrally and by virtue of the purchase made under a sale deed dated 03.10.1955 registered as Document No.1502 of 1955 on the file of Registrar, Erode. Nothing has been mentioned in the sale deed to the effect that the remaining 17 cents was already in the possession and enjoyment of the plaintiff. On the other hand, a conscious exclusion of the 17 cents has been made in the Ex.A1 sale deed dated 31.8.1995. The reproduction of the relevant portions in the vernacular language shall be helpful to understand the position. It reads, "vdf;F gpJuh$;$pj tifapYk; 03/10/1959k; njjpapy; vGjp <nuhL gjpthah; mYtyfj;jpa 1 g[j;jfk; 98 thy;a{k; 428 & 429 gf;f';fspy; 1955k; tUlj;jpa 1502 vd;dhf gjpt[bra;ag;gl;oUf;Fk; fpua rhrdg; gj;jpug;gof;F ghj;jpag;gl;l brhj;J;ffisa[k; rh;t Rje;jpukhft[k;. rh;tpy;y';f Rj;jpahft[k; Mz;lDgtpj;J;f bfhz;L tUfpd;wJk;. ahbjhU tpy;y';f tptfhu';fs; ,y;yhjJk;. vd;Dila RthjPd mDgj;jpy; ,Ue;J bfhz;L tUfpd;wJk; ",jd; kj;jpapy; cs;s g[/V/ 1/04 brd;l; tpWjpuz g{kpapy; vdf;F gpJuhh;$pj tifapy; Rauh$pj tifapy; ghj;jpag;gl;lJ. bghJtpy; g[/V/0/52 tp!;jPuz ‘ ’ ‘ ’ g{kpapy.; vdf;Fg; ghj;jpag;gl;l tPL. g[";ir g{kpfs; eP';fyhf. kPjk; cs;s g[";ir g{kpapy; bghJtpy; g[/V/ 0/35 brd;l; tp!;jPuzKs;s g[";ir g{kp g[uht[k;" 9.The above said recital in Ex.A1 would clearly show that the vendor under the deed was entitled to 52 cents out of one acre and four cents and out of the 52 cents which was specifically stated to be in the possession and enjoyment of the vendor without any encumbrance, an extent of 35 cents alone was conveyed under Ex.A1. It was also made clear in the document that remaining extent viz., 17 cents was in the possession and enjoyment of the vendor under Ex.A1; that he was having a house in the said portion of 17 cents and that the said portion with the house was reserved and retained by the vendor for himself. When such is the case, the contention of the appellant/plaintiff that he and his ancestors were in open and exclusive possession of 17 cents described to be the suit property adverse to that of Ponkaliappa Gounder does not hold water and the same deserves to be rejected as untenable. 10.Apart from contending that he had perfected title by adverse possession to the suit property, the appellant / plaintiff https://hcservices.ecourts.gov.in/hcservices/ had also made an attempt to contend that he was entitled to the said property as the sole surviving legal heir of Ponkaliappa Gounder, being his brother's only son, as Ponkaliappa Gounder died issueless. In an attempt to contend that the balance extent of 17 cents, after the sale of 35 cents to the plaintiff under Ex.A1, came to the appellant/plaintiff as the legal heir of the deceased Ponkaliappa Gounder, the appellant / plaintiff has made an attempt to impugn the sale deed executed by Ponkaliappa Gounder in favour of the respondent/plaintiff on 30.8.1996 marked as Ex.B2 to be an invalid document obtained by coercion and undue influence. Admittedly, Ponkaliappa Gounder died on 29.12.2000. More than 4 years prior to his death, Ex.B2 sale deed was executed in favour of the respondent / defendant. During the said period, there was no whisper either from the plaintiff or from Ponkaliappa Gounder about the vitiating factors of the sale deed executed in favour of the respondent / defendant. It shall be curious to note that the plaintiff in his plaint pretended to have no knowledge of the document Ex.B2. However, ingeniously he had made an averment as follows: "Ponkaliappa Gounder was taken away from the custody of the plaintiff's family by the defendant with a view to create a fraudulent document and obtained the property of the plaintiff by using coercion and undue influence." It has also been averred in the plaint that the defendant seems to have created some documents and claims to be entitled to the suit property. The conscious suppression of the fact of the execution of the sale deed (Ex.B2) in favour of the respondent / defendant will show the malafide on the part of the appellant / plaintiff. 11.In fact the defendant has come forward with clear assertion in his written statement to the effect that out of the common share of 52 cents owned by Ponkaliappa Gounder, he sold 35 cents to the plaintiff under Ex.A1 and the balance 17 cents was sold to the respondent/ defendant under Ex.B2. Even after the filing of the said written statement, the appellant/plaintiff had not chosen to file any reply statement alleging coercion or undue influence vitiating the validity of Ex.B2 sale deed. However, the plaintiff had chosen to lead evidence to that effect only through his ipse dixit as PW1. No other witness was examined on his side. The case of the plaintiff in this regard, as it can be ascertained from the pleadings found in the plaint, is that Ponkaliappa Gounder was an unhealthy man and he was under the care and custody of the plaintiff till his death on 25.12.2000 and that meanwhile Ponkaliappa Gounder was taken away by the respondent/defendant from the custody of the plaintiff and a sale deed was obtained by coercion and undue influence. In this regard, the trial Court and the lower appellate Court have appraised the evidence in a proper manner and rejected the contention of the plaintiff that the Ponkaliappa Gounder was an unhealthy man and was under the care and custody of the plaintiff as one of the members of the plaintiff's family till his death in 29.12.2000. No document has been produced on the side of the plaintiff to show that Ponkaliappa Gounder was living in the family of the plaintiff. He has not produced any family card or voters list to show that Ponkaliappa Gounder was https://hcservices.ecourts.gov.in/hcservices/ residing with him. On the other hand, the respondent/defendant has produced the family card of Ponkaliappa Gounder as Ex.B1. Ex.B1 evidences that Ponkaliappa Gounder was living separately. 12.Moreover, the person who claims a document to have been obtained by coercion or fraud to impugn such a document, is bound to prove the same by adducing sufficient evidence. The evidence adduced on the side of the appellant / plaintiff was concurrently found by the Courts below to be insufficient to discharge the onus of proof. Such a finding, at no stretch of imagination, can be termed "perverse". Unless a finding of fact is proved to be perverse, the question of fact will not amount to a substantial question of law. In this case, the only substantial question of law suggested by the appellant is "have not the Courts below erred in holding that the Ex.B2 is a valid document?" Upon considering the reasons assigned by the Courts below for arriving at a conclusion that the appellant/plaintiff has not proved Ex.B2 to be one brought to existence by coercion or undue influence or any other vitiating factors, this Court is of the considered view that the said question suggested by the appellant cannot be accepted to be a substantial question of law involved in the Second Appeal. 13.As we have seen supra, though the contention of the appellant/plaintiff to have perfected title by advise possession was also not sustainable, the learned counsel for the appellant made a meager attempt to contend that the respondent/defendant, being a stranger to the family, cannot seek to be inducted in possession of the common property and hence the Courts below should have at least granted the relief of permanent injunction directing the respondent/defendant to work out his remedy by way of a suit for partition. There are clear evidence available on record to show that though the property had been kept in common by the brothers viz., Ponkaliappa Gounder and Marappa Gounder @ Rakkiaya Gounder, sufficient evidence has not adduced on the side of the appellant/plaintiff to show that they were not divided in status and were living as one family. On the other hand, the respondent/defendant has produced the family card of Ponkaliappa Gounder to show that he was living separately. Though, the property was not divided by means and bounds, which is revealed by the recital found in Ex.A1 and Ex.B2 sale deeds relied on by the parties, it is obvious from the same that the parties were enjoying specified portions for the sake of convenience. Especially in Ex.A1, it has been clearly stated that the portion over which Ponkaliappa Gounder had his house and the land surrounding that was reserved and retained by him. This was done in 1995. In 1996, the said portion reserved and retained by him in Ex.A1 was conveyed to the respondent/defendant. Clear recital have also been made in Ex.B2 sale deed to the effect that respondent/defendant was put in possession of the 17 cents of land including the house which was existing therein. A person who has already been put in possession by a co-owner cannot be thrown out by the other co-owner without seeking the relief of partition and without seeking recovery of possession by simply praying for an order of injunction not to https://hcservices.ecourts.gov.in/hcservices/ disturb his possession. One co-owner cannot be granted injunction against another co-owner regarding enjoyment of the property, especially when the other co-owner is also in enjoyment of a specified portion for the sake of convenience. Moreover, the appellant/plaintiff has prayed for the relief of injunction only as a consequential relief, based on his prayer for declaration of his title in respect of the suit property. The appellant/plaintiff has miserably failed to prove his title to the suit property as he has failed to prove his contention that he has perfected title by adverse possession and also that the Ex.B2 sale deed executed by Ponkaliappa Gounder in favour of the respondent / defendant is null and void so as to say that he became the owner of the suit property as sole surviving legal heir of Ponkaliappa Gounder. In addition to that, when there is admission that there was no partition between the co-owners, the suit filed for a declaration and consequential injunction in respect of a portion of it alone shall not be maintainable. For all these reasons, the Courts below have rightly arrived at the conclusion that the appellant/plaintiff was not entitled to either the declaration or the injunction as prayed for. 7.This Court is of the considered view that there is no defect or infirmity in the judgments of the Courts below and there is no substantial question of law involved in this Second appeal and that hence the Second appeal deserves to be dismissed in limini. 8.In the result, the second appeal is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gpa To 1.The Principal District Judge,Erode, 2.The Principal District Munsif, Erode 1 cc To Mr.V.Bharathidasan, Advocate, SR.26932 1 cc To Mr.A.K.Kumarasamy, Advocate, SR.26624 S.A.No.897 of 2009 KK(CO) sra 26/05/2010 https://hcservices.ecourts.gov.in/hcservices/