SUBBA REDDIAR Vs. VASANTHA AMMAL

JUDGEMENT

(1.) THE plaintiff in the suit is the appellant. THE plaintiff filed a suit in O.S. No. 117 of 1979 on the file of the learned Subordinate Judge, Tindivanam for partition of half share in item nos. 1 and 2 and for recovery of possession in respect of item nos.3 to 5 of the suit properties. It was the case of the plaintiff that item Nos. 1 and 2 of the suit properties owned by one Krishnsamy Naidu and the same were his self acquired properties. Thiru.Krishnasamy Naidu died on 1.2. 1957 intestate. After his demise his son Devaraj and daughter Ramanujam Ammal partitioned orally the item nos.1 and 2 of the suit properties equally. From then onwards both Devaraj and Ramanujam Ammal were in possession and enjoyment of their respective shares without any interruption. On 14. 10. 1971, Ramunjam Ammal sold her share of the plaintiff for a sale consideration of Rs. 10,000 through a registered sale deed marked as Ex.A-1. From the date of purchase, the plaintiff is in possession and enjoyment of the properties and is cultivating the land by planting paddy and some trees. THE defendants are the owners of adjacent lands to the items 1 and 2 of the suit properties and they have no right whatsoever in respect of the properties purchased by the plaintiff. However, the defendants frequently interfered with the possession and enjoyment by the plaintiff in respect of the suit properties and such an attempt on 31.3. 1977 by the defendants was successfully prevented by the plaintiff. THErefore the plaintiff filed the suit for permanent injunction against the defendants in respect of item nos. 1 and 2. It is the further case of the plaintiff that after the filing of the suit the defendants on 23. 5. 1977 and 16. 7. 1979 encroached the item nos .l and 2 of the suit properties and forcibly took possession of the same. THErefore the plaintiff also prayed for partition of the properties in item nos.l and 2 and declaration and permanent injunction in respect of the properties mentioned in item nos.3 to 5.

(2.) THE defendants on the other hand resisted the suit by claiming that the claim of the plaintiff in respect of properties mentioned in item nos.l and 2 are not self acquired properties of Thiru.Krishnasamy Naidu. THEy also denied that Krishnasamy Naidu died on 1.2. 1957. THE further case of the defendants was that the said Ramanujam Ammal is not the daughter of Krishnasamy Naidu and Tmt. Sundaram Ammal the mother of Ramanujam Ammal was not the legally wedded wife of Thiru Krishnasamy Naidu and she was only a concubine of Thiru Krishnasamy Naidu. It was further claimed that even if is admitted that Ramanujam Ammal is the daughter of Krishnasamy Naidu through Sundaram Ammal, she is not a legitimate daughter and therefore she is not entitled to any share of the properties belonging to Krishnasamy Naidu. It was further contended by the defendants that the properties in item nos.1 and 2 were the joint family properties of Krishnasamy Naidu and his son Devaraj and there were no separate properties for Krishnasamy Naidu. Thiru. Devaraj was the only person entitled to the rights over the joint family properties after the demise of Krishnasamy Naidu and therefore that the alleged partition between Devaraj and Ramanujam Ammal was not true. Further Ramanujam Ammal had no right over the suit properties since even prior to the Hindu Succession Act came into force Thiru.Krishnasamy Naidu expired. THErefore the question, of partition did not arise. Further it was contended that after the demise of Thiru.Krishnasamy Naidu, Devaraj alone had taken possession and in enjoyment of the properties without any interruption and the right that was claimed by Ramanujam Ammal cannot be sustained and at no point of time Ramanujam Ammal was in possession and enjoyment of the properties and therefore by virtue of adverse possession also Thiru.Devaraj was entitled to the properties in item nos.1 and 2. THE defendants further contended that Devaraj sold item No. 1 of the properties to one Kanagasabai Gounder and Govindasamy Gounder on 25. 8. 1958 and on 23. 12. 1957 by registered sale deeds and they further contended that the plaintiff himself had been in enjoyment of the properties on the strength of the usufructuary mortgage (bokkiam) and therefore the plaintiff was estopped from claiming title over the properties. Further it was the case of the defendants that they had no right or title whatsoever over item nos.3 and 4 of the schedule properties. In respect of item no.5, the defendants contended that what all purchased by the plaintiff was only of half share in the well and not to an extent of 4 cents of the land and therefore the plaintiff is not entitled to the claim in respect of the land of 4 cents in item no.5 of the schedule, mentioned properties. THErefore the defendants had prayed for the dismissal of the suit. On the above pleadings, the trial Court framed the following issues: THE trial Court on consideration of the evidence found additional issue no.1, "framed on 22. 4. 1985", in favour of the defendants by holding that the item nos.l and 2 of the schedule mentioned properties were actually joint family properties of Krishnasamy Naidu and his son Devaraj and the same were not self acquired "properties" of Krishnasamy. Naidu as contended by the plaintiff. In so far as the issue no.5 framed on 18. 4. 1985, the trial Court found that in the absence of any evidence with regard to th e marriage between Krishnasamy Naidu and Sundaram Ammal and in. absence of any other documents to substantiate such a marriage, Sundaram Ammal is not a legally wedded wife of Krishnasamy Naidu and Ramanujam Ammal is not the legitimate daughter of Krishnasamy Naidu. In respect of the question of application of Hindu Succession Act to the present case. on evidence the trial Court came to the conclusion that Krishnasamy Naidu expired only after the Hindu Succession Act came into force. On the above findings the trial Court further went on to the question as to whether Ramanujam Ammal is entitled to any right whatsoever over the properties mentioned in item nos.1 and 2. On facts, the trial Court found that after the demise of Krishnasamy Naidu in the year 1957, Ramanujam Ammal was neither in possession nor in enjoyment of item nos.l and 2 of the schedule properties and further found that Devaraj had been in continuous possession of the properties in item nos.l and 2 and therefore was entitled to those properties by adverse possession also. In that view the trial Court held that Ramanujam Ammal did not obtain the properties through partition and consequently had no right over the properties and accordingly the trial Court found that the properties in item nos.1 and 2 of the schedule mentioned properties in fact belonged to Devaraj.

(3.) IN view of the categorical pronouncement by the Apex Court, this Court cannot entertain any arguments to be advanced outside the purview of substantial question of law framed at the time of admission of second appeal. That apart both the Courts below have concurrently held against the plaintiff in respect of the above issues based on evidence. The learned counsel for the appellant did not advance any arguments that the Courts below have failed to consider material evidence on record or ignoring impossible evidence or on any other ground under Section 100, C.P.C. for this Court could interfere. It is well settled principle that this Court cannot interfere in the concurrent findings of facts however erroneous they are. The said principle has been laid down by the Apex Court in the judgment reported in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others , 1999 (II) CTC 468 : A.I.R. 1999 SC 2213. IN that view of the matter I do not find any reason even on merits to interfere with the concurrent findings of the Courts below in respect of the above submissions made by the learned counsel for the appellant.