R. Mahadevan, J.—This Appeal is directed against the Judgment and Decree dated 30.10.2010, made in A.S No.31 of 2010, on the file of the Sub-Court, Virudhunagar, reversing the Judgment and Decree dated 22.6.2010, made in O.S. No. 24 of 2008, on the file of the District Munsif Court, Virudhunagar.
2. The factual matrix relevant for deciding the Second Appeal is as below:
The Suit properties originally belonged to one Alagarsamy Naicker and after his death, it was devolved upon his two sons, namely Kandasamy Naicker and Subburaj, the first Respondent herein and they were in possession and enjoyment of the entire properties till 1985. During 1985, there was a Oral Partition effected between them and they were in separate possession and enjoyment by paying Kists. The Suit Schedule properties were at the hands of Kandasamy Naicker and he enjoyed the properties having Patta in his name. He married one Veeralakshmi. They have no issues. He died on 30.10.2002 leaving behind him his wife, viz., Veeralakshmi, as his legal Heir by virtue of her possession, she sold the Suit properties to the Appellant by executing two Settlement Deeds on 30.1.2006. On purchase the Appellant was in possession and enjoyment of the Suit properties and also obtained Patta in his favour. The first Respondent herein is the brother of the said Kandasamy Naicker and the Second Respondent is the wife of the First Respondent. Ultimately, the Appellant came to understand that the first Respondent executed a Settlement Deed in fax our of his wife, the Second Respondent herein, on 4.1.2006 in respect of the Suit properties While so, on 10.1.2008, when the Appellant was in possession of the properties, the Respondents and their men disturbed his possession over the Suit properties. Therefore, he laid the Suit for Declaration declaring that the Suit properties belonged to him and a consequential relief of Injunction as well as a Declaration declaring that the Settlement Deed executed on 4.1.2006 by the first Respondent in favour of the Second Respondent is not valid.
3. The Respondents, as Defendants, filed a Written Statement stating that the Suit properties originally belonged to one Alagarsamy Naicker and his brothers. His brothers died without issues. The said Alagarsamy Naicker has two sons and three daughters. He died without executing any document relating to the properties. After his death, Kandasamy Naicker and the first Respondent enjoyed the properties without any Partition. The Appellant is none other than the son of First Respondent''s sister. Since Kandasamy Naicker died as bachelor, he has no issues. Veeralakshmi, as stated in the Plaint, is not the wife of Kandasamy Naicker. Since he died having no issues, the First Respondent became the absolute owner of the Suit properties, who, in turn executed a Settlement Deed in favour of his wife, viz., the Second Respondent herein. Thus, the Appellant has no right over the Suit properties and no Partition was effected in respect of the Suit Schedule properties. Therefore, the Suit, as filed by the Appellant, is not maintainable.
4. During trial, on the side of the Appellant/Plaintiff, two Witnesses were examined as PW1 & PW2 and as many as 16 Documents were marked as Ex.A1 to Ex.A16. On the side of the Respondents/Defendants, two Witnesses were examined as DW1 and DW2 and as many as nine documents were marked as Ex.B1 to Ex.B9. Ex.X1 and Ex.X2 were also marked on the side of the Witness.
5. Having considered all the above, the Trial Court framed necessary issues and answered the issues in favour of the Appellant and decreed the Suit as prayed for.
6. The matter was taken up in First Appeal by the Respondents and the Lower Appellate Court considered the issues by framing the point for consideration and answered all the issues against the Appellant, thereby, dismissing the Suit by reversing the Judgment and Decree of the Trial Court Aggrieved over the same the Appellant is before this Court with the present Second Appeal.
7. When the Second Appeal was admitted, on 8.7.2011, this Court framed the following Substantial Questions of Law:
"(a) In the absence of any evidence with regard to the place of residence of Late Kandasamy, whether the Lower Appellate Court right in disputing the veracity of the documents Exhibits A9 & AID and dismissing the Suit ?
(b) Whether the finding of the Lower Appellate Court is correct in saying that Kandasamy died without marriage and without any Legal Heirs ignoring the Exhibits A9 & A10 and the evidence of PW2 and
(c) Whether the Lower Appellate Court right in framing additional issues in the Appellate stage and giving finding without allowing the parties to adduce additional evidence to meet out the additional issues framed in the Appellate Court as required under Order 41, Rule 25 of Civil Procedure Code ?"
8. I have heard the learned Counsel appearing for the Appellant, the learned Senior Counsel appearing for the Respondents and I have also gone through the materials available on record carefully, including the Judgments rendered by the Courts below.
9. The learned Counsel appearing for the Appellant submits that originally the Suit properties belonged to one Alagarsamy Naicker and after his demise, it devolved on the first Respondent and his brother Kandasamy Naicker. Subsequently, a Partition was effected between them and thereafter, they were in separate possession and enjoyment of the properties and the Suit Schedule properties were allotted in favour of Kandasamy Naicker and in order to prove the same, Patta stood in the name of Kandasamy Naicker was marked as Ex.A5 Ex.A4-Kist Receipts were also produced. The learned counsel further added that Veeralakshmi is the wife of Kandasamy Naicker and to prove the relationship between them, PW2 was examined and Ex.A9-Voter Identity Card and Ex.A10-Patta Pass Book were produced, wherein, at the place of husband''s name, it was mentioned as ''Kandasamy''. Therefore, from the evidence of PW2, and Exs.A9 & A10, it is crystal clear that after the death of Kandasamy Naicker, the Suit properties devolved on Veeralakshmi as his Legal Heir and she was in absolute possession and enjoyment of the same and, therefore, she, being the Owner of the Suit Schedule properties, has rightly executed Sale Deeds in favour of the Appellant. The said fact, according to the learned Counsel, was rightly considered by the Trial Court. However, on Appeal, the Lower Appellate Court, ignoring the evidence of PW2 and Exs.A9 & A10, interfered with the well considered findings of the Trial Court and dismissed the Suit, which needs interference at the hands of this Court.
10. Adding further, the learned Counsel submits that no examination was made with regard to the contention that Kandasamy Naicker, the husband of Veeralakshmi, is not the one who is having the Suit properties and he is a different person and in the absence of examination with regard to that aspect, the First Appellate Count did not consider even a single piece of evidence of PW2. Further, the Lower Appellate Court framed additional issues, but, whereas, to prove those issues, no Witness was examined and no evidence was adduced, as required under Order 41, Rule 25 of Civil Procedure Code. Thus, the learned Counsel submits that the Judgment and Decree passed by the Trial Court has to be confirmed and the Judgment and Decree of the Lower Appellate Court is liable to be interfered with.
11. Per contra, the learned Senior Counsel appearing for the Respondents submits that as alleged by the Appellant, there was no Oral Partition effected between the First Respondent and Kandasamy Naicker during the year 1985 and they were in joint possession and enjoyment till the death of Kandasamy Naicker. Since Kandasamy Naicker died without having marriage and without any Legal Heir, the First Respondent, as his brother, became the absolute owner of the entire properties including the Suit Schedule properties. The factum of marriage of Kandasamy Naicker with Veeralakshmi was denied even in the Written Statement itself. The Appellant, being the purchaser and Plaintiff, has to prove the title of vendor, from whom, he has purchased the properties and if he is not in a position to prove the same, the title of the properties itself goes. Ex.A9 is the Voter Identity Card and Ex.A10 is not related to the Suit properties and the same is related to a different place. Thus, the documents relied upon by the Appellant have not proved the relationship of Kandasamy Naicker with Veeralakshmi, as husband and wife, on the basis of which, the Suit was decreed and therefore, the Appellate Court has rightly framed additional issues and dealt with the matter in proper perspective and came to the conclusion that the Appellant has failed to prove the title of the Suit properties and as such he is not entitled to the relief sought for in the Plaint and dismissed the Suit and the same is not liable to be interfered with at the hands of this Court.
12. I have considered the above rival submissions.
13. Admittedly, the Suit properties belonged to one Alagarsamy Naicker and his brothers. The brothers of Alagarsamy died having no issues. Alagarsamy Naicker has two sons, viz., the First Respondent and Kandasamy Naicker and three daughters. He died leaving behind them as his Legal Heirs without executing any document in respect of the Suit properties. Kandasamy Naicker also died on 30.10.2002 without any issue, as evident from Ex.A8-Death Certificate.
14. PW1-Selvaraj-Plaintiff, in his cross-examination, pleaded ignorance about the marriage between Kandasamy Naikcer and Veeralakshmi and he also accepted that no document was produced to prove the same PW.2-Velthai, who is none other than the sister of the first Respondent and Kandasamy Naicker, also pleaded ignorance about the same. To prove the factum of marriage, the Appellant produced Exs.A9 & A10 Ex.A8 is the Death Certificate of Kandasamy, wherein, in the place of death, it was mentioned as ''3/18, E, Sundaralingapuram Utkadai, Thulukkapatti Village''. Ex.A9 is the Voter Identity Card of Veeralakshmi, wherein, her place of residence was mentioned as ''Duraisamypuram''. Ex.A10 is the Patta Pass Book relating to Kovilpatti Taluk. Therefore, while comparing those documents, one could understand that as per Ex.A8, Kandasamy Naicker died at Thulukkapatti Village, whereas Ex.A9 & A10 related to Duraisamypuram, where Veeralakshmi resided. It seems that both of them resided at a different place. The Appellant, being the Plaintiff, has to prove the title of the Suit properties by producing documents to the effect that Veeralakshmi and Kandasamy Naicker resided at one and the same place as husband and wife, but he failed to do so. When the Respondents, Defendants denied then relationship, the Appellant, being the Plaintiff, has to examine the said Veeralakshmi, to prove the factum of marriage, which, he failed to do so. Further, no Legal Heir Certificate was produced to show that Veeralakshmi is the Legal Heir of Kandasamy Naicker. Therefore, the Lower Appellate Court has rightly dealt with the issue on the available materials and the same, in my considered view, need not be interfered with.
15. In the result, finding no merit, the Second Appeal is dismissed. No costs. Consequently, the connected Miscellaneous Petition is also dismissed.
