Nadar & Anr Vs. A.Chockalinga Nadar & Anr  Insc 949 (13 December 2006)
& C.K.Thakker A.K. Mathur, J.
appeal is directed against an order passed by learned Single Judge of the High
Court of Madras in Second Appeal No.712 of 1987 on 1.4.1999 whereby learned
Single Judge of the High Court of Madras has reversed the concurrent finding of
fact by the two courts below and set aside both the judgments and granted a
decree in a suit of the plaintiffs.
facts giving rise to this appeal are that the plaintiffs filed a suit for
permanent injunction, restraining the defendants from interfering with the
plaintiffs' possession and enjoyment of the suit property. Item No.1 of the
suit property came in share of the 1st plaintiff while the 2nd item of the suit
property in favour of the 2nd plaintiff in a partition that took place in 1965.
alleged that ever since the plaintiffs were in possession and enjoyment of
their lands and they had been paying the land revenue for the same. The 3rd
defendant is the father of both the plaintiffs. The 1st plaintiff was employed
in Madura Garments Mill at Vikiramsainghapuram from the year 1941 and the 2nd
plaintiff was employed from the year 1944. Both the plaintiffs are the earning
members of the family. It is alleged that out of the said earnings, certain
joint family properties were purchased and the 3rd defendant being the head of
the family i.e. father and head of the family, both the properties i.e. item
Nos.1 and 2 were purchased out of this common pool on 17.5.1949 in his name.
These properties were joint family properties till 1965. It was further alleged
that the said item Nos.1 and 2 properties were divided between the plaintiffs
and the defendants in the year 1965. Defendant No.3 was maintained by the
plaintiffs till his life time. It was alleged that the 1st plaintiff had been
paying the land revenue for item No.1 of the suit property while 2nd plaintiff
was paying the land revenue for the item No.2 of the suit property. It was alleged
that in the sale deed executed by the 1st plaintiff and the 3rd defendant in favour
of one Dhiraviya Nadar on 9.9.1981, the 3rd defendant i.e. the father of
plaintiffs had admitted the partition and character of the property. Apart from
this, both the plaintiffs claimed properties by way of adverse possession. It
was alleged that at the instigation of the mother of defendant Nos.1 & 2,
the 3rd defendant, the defendant Nos.1 & 2 were attempting to interfere
with the possession of the plaintiffs.
the present suit was filed. It may be relevant to mention here some genealogy.
Plaintiff Nos.1 & 2 are the sons of Defendant No.3 and Defendant Nos.1
& 2 are the grandsons of defendant No.3, being the sons of his daughter
i.e. plaintiff Nos.1 & 2 are the sons of Defendant No.3 and Defendant Nos.1
& 2 are the sons of sister of Plaintiff Nos.1 & 2.
No.3 has sold the item Nos.1 & 2 of the suit properties to Defendant Nos.1
& 2, the grandsons. The plea of defendant Nos.1 and 2 was that the
plaintiffs had no right over the suit property, defendant No.3 purchased both
the properties out of his own funds and he was the sole owner of both the
properties and he has sold these properties to defendant Nos. 1&2 for
valuable consideration on 18.2.1982 and ever since the defendant Nos. 1 & 2
are in possession and enjoyment of the same. They have denied the so called
partition as alleged by the plaintiffs in the year 1965. They also denied the
plaintiffs have acquired title to the suit properties by way of adverse
possession. It was also alleged that since the defendant No.3 refused to sell
the properties to the plaintiffs, the plaintiffs have removed certain documents
from the house of defendant No.3 and complaint to this effect was also filed.
No.3 also filed a written statement, though he did not appear in the witness
box and in that written statement he has denied the factum of partition in the
year 1965 and he has also asserted that the properties were never purchased as
joint family properties. The properties were purchased by him out of his own
funds and he was in possession of the suit properties in his own right and he
sold the same in favour of defendant Nos.1 and 2 for valuable consideration and
put them in possession. It was also alleged that in the sale deed dated
9.9.1981, the plaintiff No.1 has made a false recital. It is alleged that he
came to know about it only after the filing of the suit. It is further alleged
that since he declined to sell his land to one Rameshwaram, the plaintiffs with
the help of one Sub- Inspector of Police, Alangulam P.S. trespassed into his
house and removed certain valuable records. The defendant No.3 made a complaint
to this effect on 18.2.1982 and the same is pending.
District Munsif, Thenkasi, framed necessary issues and after the trial,
dismissed the suit with costs. Aggrieved against that judgment, the plaintiffs
preferred an appeal to the Sub-Court, Thenkasi in A.S.No.69 of 1984 and the
same was also dismissed by the Subordinate Judge. Aggrieved against the order
passed by the Subordinate Judge, a second appeal was preferred by the
plaintiffs before the High Court. The second appeal was admitted and the
following questions of law were framed.
(i) Whether the Courts below are right in brushing aside the admission made in Exs.A
24 and A25, that the property is a joint family property, in view of the
decision of the Supreme Court in AIR 1960 SC 100 at page 105 ?
Whether the judgments of Courts below are vitiated by placing the onus wrongly
on the appellants in view of the decisions of the Supreme Court in AIR 1963 SC
1279 and AIR 1974 SC 1170 ?
Whether the Courts below are right in their legal inference drawn from the
documentary and oral evidence that the property is not a joint family property
Whether the Courts below are right in their construction of the documents Exs.
A24 and A25 ?
Whether the courts below are right in rejecting the plea of adverse possession
without considering the documentary evidence filed by the appellant ?"
Single Judge after reviewing the whole evidence allowed the second appeal
primarily on the basis of the documents, Exts. A24 & A25 and held that the
important material was not looked into by the trial court and disbelieved
Ext.A1, purchase of the properties by defendant No.3 and held that the
plaintiffs were aged 24 and 20 respectively on the date of acquisition of
Ext.A1, they were earning members of the family, therefore, both the properties
had been purchased in joint family property and as such defendant No.3 had no
right to sell these properties in favour of defendant Nos.1 & 2.
after appreciating the whole evidence, learned Single Judge of the High Court
of Madras has allowed the second appeal and decreed the suit of the plaintiffs.
Hence, the present appeal.
have heard learned counsel for the parties and perused the papers. The first
and foremost question is whether these two properties were purchased from out
of the contribution made by the plaintiffs or all these properties were
purchased by defendant No.3 in his own right. A perusal of the document, Ext.A1
clearly shows that the properties were purchased by defendant No.3 and it no
where shows that the properties were purchased jointly with Plaintiff Nos.1
& 2. This document, translated copy of Ext.A.1 dated 17.5.1949 had been
placed on record and on perusal of the same it clearly transpires that the
properties had been purchased by defendant No.3 and it does not mention
anywhere that the properties were purchased jointly with plaintiff Nos.1 &
2. So far as this document is concerned, which is one of the subject matter of
the suit, nowhere evidenced that the properties had been purchased out of the
common pool. Learned Single Judge has tried to draw inference on the basis of
the two documents i.e.
24 & A 25. These two documents, Exts.A24 & A25, the sale deeds produced
by plaintiffs in which the names of the sons find mentioned, one of his sons
has been mentioned as Chokalinga Nadar which only evidenced that the property
in question was sold to a third party along with his father, defendant No.3.
The second document i.e., Ext.A25 which is also evidenced that another property
was sold by defendant no.3 in which the names of his both the sons i.e.
Plaintiff Nos.1 & 2 find mentioned. From these two documents, the learned
Single Judge has jumped to the conclusion that the property mentioned in Ext.A
24 & A 25 was the joint family property, firstly no such issue with regard
to Exts. A24 & A25 was framed by the trial court nor these two documents in
any manner show that the property sold by defendant No.3 to his grandsons,
Defendant Nos. 1 & 2 was his joint family property. The sale of some
property in the family does not necessarily lead one to infer that all the
properties were in common pool in which contribution was made by both the sons.
We regret that the finding of fact recorded by the learned Single Judge on the
basis of the documents, Exts.A 24 & A25 is not correct.
when such emphasis was placed on the documents, then learned Single Judge
should frame issues to that effect and remanded the matter to the trial court.
But that was not done. Learned Single Judge himself has entered into the area
of finding of fact and tried to jump to the conclusion on the basis of the two
documents that the properties were of joint family properties. Learned Single
Judge has observed that the recital is very important and these documents had
been glossed over or brushed aside by the courts below in a very flippant
manner but at the same time no issue was framed on the basis of Exts.A 24 &
A 25 & inference was drawn that the properties belonged to the joint
family. The properties were purchased as per Ext.A-1 in the year 1949 and there
is no mention in that document that the said property was purchased out of the
common pool by Plaintiffs. Therefore, inference drawn by learned Single Judge
on appreciation of evidence does not appear to be correct. We are satisfied
that the inference drawn by learned Single Judge in the facts and circumstances
of this case, cannot be sustained. Therefore, we are of opinion that the
reversal of finding of fact of both the courts below by learned Single Judge in
Second Appeal does not appear to be correct. High Court should be slow in
reversing finding of facts unless there are compelling reasons for doing so.
The inference drawn by learned Single Judge on the basis of Exts.A 24 & A25
that the suit property was joint family property is erroneous and that cannot
be sustained. Consequently, we allow this appeal, set aside the judgment and
decree passed by learned Single Judge and we confirm the order passed by the
learned trial court, affirmed by the first appellate court. There would be no
order as to costs.