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CASE NO.: Appeal (civil)  822 of 2000

PETITIONER: S.Appadurai Nadar & Anr.                                         Appellants

RESPONDENT: A.Chockalinga Nadar & Anr.                                       Respondents

DATE OF JUDGMENT: 13/12/2006

BENCH: A.K.MATHUR & C.K.THAKKER

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

               This 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.

               Brief 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.   It  was 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.  Hence, 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

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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.  Defendant 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.                                   Defendant 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.  

               The 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 ?                 (ii)    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 ?                 (iii)   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 ?                 (iv)    Whether the Courts below are right in  their construction of the documents Exs. A24  and A25 ?                 (v)     Whether  the courts below are right in

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rejecting the plea of adverse possession  without considering the documentary evidence  filed by the appellant ?"

               Learned 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.  Hence, 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.

               We 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.  Exts.A 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.  Normally, 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  

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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.