RAMU ASARI Vs. THIRUMOORTHY

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment of the learned Principal District Judge, Madurai, in A.S. No. 66 of 1985 confirming the judgment of the learned Subordinate Judge, Madurai, in O.S. No. 177 of 1982. The plaintiff's in the suit are the appellant's in the above Second Appeal.

(2.) ACCORDING to the plaintiff's the suit property originally belonged to three brothers, Subramanian, Thangavel, Velmurugan, Murugan Asari is one of the "Pangalis" of the said individuals. Subramanian left behind his son Senthilvel and his wife Rakkammal on his death before 1906. On 30.3.1906, while Thangavel was a minor, his mother as guardian, and Thangavel and Velmurugan Asari effected a partition through a registered document. The suit property was allotted to the share to Velmurugan. The said share was in the absolute and exclusive possession of Velmurugan and he died in the year 1936 leaving behind his wife Palaniammal as his sole heir, who succeeded to the suit property and was in exclusive possession and enjoyment in her own rights. Defendants 1 to 3, representing Viswa Brahmana Dakshina Mahajana Sangam (hereinafter called "Sangam") with the ulterior motive of taking over the property, brought into existence a sale deed dated 20.1.1941 in favour of one Rajamani, a member of the Sangam, by obtaining the signature of Palaniammal fraudulently. Subsequently, a sale deed was executed by Rajamani in the name o f Sangam. Palaniammal after coming to know about the fraud played upon her, filed a suit in O.S. No. 164 of 1950 on the file of the District Munsif, Madurai, to declare her rights and for possession. The said suit was decreed in her favour and the appeal filed against the decree in A.S. No. 23 of 1952 was also dismissed and consequentially, Palaniammal took possession of the property and was in possession and enjoyment of the suit property.

(3.) MR. R. Thiagarajan, learned Senior Counsel, for the respondents, contends that none of the points raised on behalf of the appellant's could be sustained. There are sufficient pleadings and evidence to rebut the allegation of "nonest factum" and considered by the Courts below. The Courts below have also recorded a positive findings against the appellant's after analysing the evidence. The findings on the allegation pertaining to nonest factum , fraud, etc. are concurrent findings of fact. As regards the allegation of fraud no facts, details or particulars have been alleged in the pleadings in conformity with the requirement under Order 6, Rule 4 C.P.C. The objection taken on the said ground are by strangers and not parties to the document. With reference to the genealogy, there was no evidence to show that the very same genealogy had been considered by the Courts in the earlier proceedings as regards their correctness. The mere representation or assertion by one of the parties to the earlier proceedings will not create bar in a subsequent proceedings to challenge or to dispute its correctness. It was further contended that the settlement was in favour of the Sangam, but the Sangam had not been impleaded as a party and therefore, the suit as framed was not maintainable.