(Prayer :- Second Appeal filed under Section 100 of Civil Procedure Code, to set aside the judgment and decree passed by the Subordinate Court,Palani made in A.S.No.83 of 2018 dated 03-09-2019 by confirming the judgment and decree passed by the Principal District Munsif Court,Palani made in O.S.No.234 of 2013 dated 06-06-2018 and to allow the above second appeal.)

1. The defendants 2 to 4, who suffered concurrent findings before the trial Court in O.S.No.234 of 2013 on the file of the District Munsif Court, Palani, and the first appellate Court in A.S.83 of 2018, on the file of the Subordinate Court, Palani, are the appellants herein.

2. The first respondent / plaintiff has sought for a relief of declaration and injunction, which has been decreed by the trial Court and affirmed by the first appellate Court.

3. The Second Appeal is yet to be admitted. However, by consent, the second appeal has been taken up for final hearing.

4. I have heard Mr.C.Gangai Amaran, learned counsel for the appellants and Mr.G.Sridharan, learned counsel for the contesting first respondent. There is no appearance on the side of the respondents 2 to 4.

5. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

6. Brief facts that are necessary for decision in the above second appeal are as follows:

The suit property measuring 94 cents comprised in survey No. 356/1 was a larger extent of 1.05 Acres before the settlement survey, which originally belonged to one Kaliyappa Gounder, from whom, Nachammal W/o. Karuppana Gounder under registered sale deed bearing document No655 /1950 purchased the same, for valuable sale consideration. The first defendant/Palanisamy Gounder purchased the said property from Nachammal. The defendants 2 and 5 are the sons of the first defendant, the defendants 3 and 4 are the sons of the second defendant, the sixth defendant is the son of the fifth defendant and the seventh defendant is the subsequent purchaser. The subject matter of purchase by Palanichamy Gounder, the first defendant was only an extent of 15 cents, which is the subject matter of the suit. According to the legal heirs of the first defendant, they were living along with their father as a joint family and on 19.09.1988, they entered into an oral partition, pursuant to which, the first defendant mortgaged his share in favour of one Vembana Gounder on 19.09.1988. The fifth defendant also executed a mortgage deed in favour of one Kandasamu Gounder on 19.09.1988 and similarly, the second defendant executed three mortgage deeds in favour of Karuppana Gounder on 19.09.1998. On the very same day, the first defendant executed a settlement deed in favour of his wife Palaniammal. Subsisting the said mortgage executed by the second defendant, the second defendant sold the property to the first plaintiff on 09.02.1998. The plaintiff thereafter only entered into a sale transaction in favour of Nalli Gounder on 21.08.2001. The said agreement did not go through and was cancelled on 02.09.2010. The defendants 1, 5 and 6 sold their respective shares to one Dhandapani on 23.02.2005 and the remaining extent of 15 cents was sold by the second defendant to the seventh defendant on 26.07.2012 claiming that the defendants had no right in the suit property and that the sales effected by them were suppressing an oral partition and alleging that the defendants 2 and 3 were encroaching the suit property, the plaintiff filed the present suit in O.S.No.234 of 2013.

7. The defendants 1 to 4 resisted the suit claim, by filing a detailed written statement, contending that the first defendant had purchased the suit property from the lawful owner as early as on 10.07.1969 and the plaintiff is bound to prove the alleged oral partition amongst the family members. The defendants 1 to 4 claimed to be in possession and enjoyment of 15 cents. The sale in favour of the plaintiff is only by the defendants 2 and 3 and the remaining defendants have not executed any sale deed and the sale deed executed by the defendants 2 and 3 without partition is not binding on defendants 1, 4 to 6, despite purchase of the same from defendants 2 and 3. The plaintiff has also not taken any steps to recover possession of the property and without seeking the relief of possession, the suit for declaration and permanent injunction is not maintainable.

Trial:

8. Before the trial Court, the plaintiff examined herself as P.W.1 and 16 documents were marked as Ex.A1 to Ex.A16. On the side of the defendants, the second defendant examined himself as D.W.1 and one Muthusamy was examined as D.W.2 and 3 documents were marked as Ex.B1 to Ex.B3.

Decision of the trial Court and the first appellate Court:

9. The trial Court, on consideration of the pleadings and evidence adduced by the parties, decreed the suit on 06.06.2016, as against which, the defendants preferred an appeal in A.S.No83 of 2018, before the Subordinate Court, Palani, which was also dismissed, confirming the findings of the trial Court.

10. Aggrieved by the concurrent findings of the trial Court as well as the first appellate Court, the defendants filed the present second appeal.

Arguments of Mr.C.Gangai Amaran, learned counsel for the appellants:

11. The learned counsel for the appellants / defendants 2 to 4, Mr.C.Gangai Amaran, would state that the Courts below have failed to consider the evidence adduced on the side of the defendants, specifically D.W.1, who spoke about the execution of the sale deed in favour of the plaintiff by the second defendant only for discharge of his liability. He would also invite my attention to the evidence with regard to there being no partition much less proof of the alleged oral partition on the side of the plaintiff. He would further state that the Courts below have not appreciated the material document, Ex.A1-sale deed, dated 10.07.1969, under which the first defendant purchased the suit property from the lawful owner, for consideration, as early as 1969. He would also state that the plaintiff has failed to establish the factum of being in possession and enjoyment of the property, entitling him to the relief of permanent injunction and consequent to the relief of declaration. He would also invite my attention to the patta standing in the name of the first defendant, which clearly established the factum of possession being with the first defendant, which the Courts below have erroneously discarded, by relying on the principle that mutation of revenue records would not confer title. He would also harp on the fact that the defendants 2 and 3, without partition, could not have validly executed the sale deed in favour of the plaintiff and such sale would not bind the other defendants. Lastly, it is his submission that the defendants admittedly were in possession and without seeking the relief of possession, there is a bar to grant relief under Section 34 of the Specific Relief Act. In this regard, the learned counsel also suggested substantial questions of law.

Arguments of Mr.G.Sridharan, learned counsel for the first respondent:

12. Per contra, Mr.G.Sridharan, learned counsel for the contesting first respondent/plaintiff, would submit that both the Courts have rightly considered the pleadings in the light of the evidence adduced by the parties and arrived at a concurrent finding and this Court exercising the jurisdiction under Section 100 CPC, is not entitled to overturned such concurrent findings, especially, when no perversity in approach or findings of the Courts below has been demonstrated by the appellants. Mr.G.Sridharan, learned counsel for the first respondent/plaintiff would also state that the defendants 2 and 3 did not dispute the factum of having sold the suit property to the plaintiff and though a feeble plea was taken in defence that the sale deed was nominal document and executed only for discharge of a debt, no satisfactory evidence was adduced during the trial to establish the said plea. He would also state that the Courts below have rightly accepted the plea of oral partition based on Ex.A2, A3 and A4, which clearly confirmed the oral partition. He would therefore state that the Courts below have not committed any error in granting the decree in favour of the plaintiff, warranting interference in the second appeal.

Analysis:

13. I have carefully considered the submissions advanced by the learned counsel for the parties.

14. The only point that requires consideration is as to whether the defendants 2 and 3 were entitled to convey the suit property measuring 15 cents in favour of the plaintiff, without effecting a partition and as to whether the claim of the plaintiff that the sale was only in pursuance of oral partition was rightly appreciated by the Courts below. As already discussed, there is no dispute with regard to the entitlement of the respective parties. However, the only ground on which the plaintiff's claim has been strongly resisted is that there was no oral partition as alleged by the plaintiff and therefore, the defendants 2 and 3 without effecting any partition could not have alienated a definite share of 15 cents within four boundaries. However, the parties have let in evidence and the trial Court and the first appellate Court have rightly, in my considered opinion, found that the defendants themselves have admitted to the fact that there has been an oral partition as pleaded by the plaintiff, which is also borne out of record, viz., Ex.A2 to A4, which contain recitals referring to the said oral partition. In such circumstances, the sale by the defendants 2 and 3 in favour of the plaintiff, which is also admitted by them, was only a sale deed for valuable consideration and executed by defendants 2 and 3, pursuant to the oral partition amongst the defendants. The appreciation of the evidence by the Courts below is proper and there is no necessity for interfering with the said wellconsidered findings of the Courts below concurrently.

15. I do not find any substantial grounds arising for consideration in the second appeal, warranting interference under Section 100 of the Code of Civil Procedure.

16. In fine, the second appeal is dismissed and the judgment and decree in O.S.No.234 of 2013 on the file of the District Munsif Court, Palani, by affirming the judgment and decree in A.S.83 of 2018, on the file of the Subordinate Court, Palani, is hereby confirmed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.