S.A.No.541 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.541 of 2021
and
C.M.P.No.11301 of 2021
1. Marimuthu
2. Sanikkalamai Subramani @ Subramani
3. Subramani
4. Vijayalakshmi
5. Minor Archana
(Minor represented by next friend/
guardian mother)
...Appellants
Vs
1. Karthikeyan
2. R.Parthiban ...Respondents
PRAYER: Second Appeal is filed under section 100 of the Civil
Procedure Code against the judgment and decree dated 16.03.2021
made in A.S.No.38 of 2020 on the file of the learned I Additional Sub
Judge of Erode, confirming the judgment and decree dated
14.02.2020 made in O.S.No.29 of 2012 on the file of the learned
Principal District Munsif of Erode.
For Appellants : Mr.B.Mohan
For Respondents : Mr.S.Thangavel
/Caveators
****
https://www.mhc.tn.gov.in/judis
1
S.A.No.541 of 2021
JUDGMENT
The defendant who has lost before the Courts below is the appellant before this Court.
2. The facts in brief are herein narrated below describing the parties in the same ranking as before the Trial Court.
(i) The plaintiffs had filed a suit seeking to have themselves declared as the absolute owners of the suit schedule property, directing the defendants to deliver vacant possession of the suit property to the plaintiffs and for a permanent injunction restraining the defendants from putting up any new construction.
(ii) It is the case of the plaintiffs that the larger extent of the suit property situate in Nanjai Uthukuli Village belonged to their ancestors. Ultimately, the plaintiffs' father, Ramalinga Gounder, who succeeded to the property, during his life time, had executed a Will dated 23.02.2005 bequeathing the suit property upon the plaintiffs. The said Ramalinga Gounder died on 04.03.2005 and the Will thereupon came into effect. The plaintiffs would submit that the fact that the larger extent of the property belonged to them is evidenced by a Mortgage Deed executed on 25.11.1921 by their great https://www.mhc.tn.gov.in/judis 2 S.A.No.541 of 2021 grandfather, Sengottaiya Gounder in favour of Komarappa Gounder in respect of an extent of 9.03 acres in S.F.No.537A on 31.10.1927. Yet another Mortgage Deed was executed by the said Sengottaiya Gounder in favour of Karunthevampalaym Co-operative Society with reference to the very same extent of 9.03 acres in S.F.No.537A. Thereafter, the plaintiffs' father, Ramalinga Gounder had executed a registered Mortgage Deed in favour of one Ramasamy Gounder on 21.06.1962 in respect of an undivided half share in Old S.F.No.537/A. The remaining share belonged to the said Ramalinga Gounder's brother, Muthusamy Gounder.
(iii) It is the case of the plaintiffs that their father and his brother, Muthusamy Gounder had orally divided the property and had sold portions of the property to several persons. On the west of the suit property, one S.A.Loganathan had purchased an extent of 1.47 acres in R.S.No.508 under a registered Sale Deed dated 28.10.2002. The plaintiffs would submit that the lands were being personally cultivated by their father. While so, 10 years prior to the suit, the plaintiffs' father had permitted the defendants to put up temporary hut in the said property on condition that they would vacate the same as and when requested. The said Ramalinga Gounder thereafter settled in Vellakoil where his wife had inherited the https://www.mhc.tn.gov.in/judis 3 S.A.No.541 of 2021 property from her parents. After the death of their father, the plaintiffs wanted to settle in their native village and had decided to construct a house in the said property. In the first week of January 2010, the plaintiffs revoked theirpermission and requested the defendants to vacate and hand over the vacant possession of the suit property. Though the defendants were put on notice, they had however refused to vacate the same. The Nanjai Unthukuli Panchayat Board with the permission of the plaintiffs' father had set up a television room for them, which they had undertaken to demolish the same as and when requested. However, the defendant had not vacated the property and were attempting to set up an independent title. Therefore, the plaintiffs had come forward with the above suit.
3. The written statement of the defendants was to the effect that the property did not belong to Ramalinga Gounder or his predecessor-in-title. The Will and Mortgages were created with sole intent of evicting the defendants from the property. The second defendant had raised a question of valuation, since according to the second defendant the suit property was a house site and not an agricultural land. They also pleaded non-joinder of occupants of the property. They denied the factum of permissive occupation and https://www.mhc.tn.gov.in/judis 4 S.A.No.541 of 2021 assumed upon themselves an independent right.
4. The Trial Court, on considering the pleadings that had been submitted by all the defendants, had framed the following issues:
a) Whether the suit property is the ancestral property of the plaintiffs' family and the plaintiffs' are the absolute owners of the same?
b) Whether the defendants are the permissive occupants of the suit property?
c) Whether the plaintiffs are entitled to the relief of declaration of title as prayed by them?
d) Whether the plaintiffs are entitled for
the relief of recovery of possession?
e) Whether the plaintiffs are entitled for
the relief of permanent injunction as prayed for?
f) Whether the suit is not properly valued for the purpose of Court fees and jurisdiction?
5. The first plaintiff had examined himself as P.W1 and examined Thirumalaisamy and Muthusamy as P.Ws.2 and 3. Exs.A1 to A24 were marked by the plaintiffs in support of their case. On the side of the defendants, 13 witnesses were examined which included https://www.mhc.tn.gov.in/judis 5 S.A.No.541 of 2021 the fifth defendant as D.W1 and Exs.B1 to B21 were marked. The Commissioner's report was marked as Exs.C1 and C2 and through the Court witnesses, Ex.C1 to C69 were marked.
6. The Trial Court, on considering the evidence on record and after hearing the arguments of the learned counsel on both sides, had proceeded to allow the appeal and directed the defendants to vacate and hand over the possession to the plaintiffs within a period of two months. Challenging the same, the defendants had filed an appeal in A.S.No.38 of 2020 on the file of the I Additional Subordinate Judge, Erode. The learned Subordinate Judge also confirmed the judgment and decree of the trial Court by dismissing the appeal. Aggrieved by the same, the defendants are now before this Court.
7. When the matter had come up for hearing on 02.09.2022, the plaintiffs had entered caveat and the matter, which was first listed on 03.08.2021 was being adjourned, since the appellants/defendants had submitted that they would be filing the documents. However, after over a year, no documents have been filed. Therefore, this Court has proceeded to hear the arguments of the learned counsels on both sides.
https://www.mhc.tn.gov.in/judis 6 S.A.No.541 of 2021
8. The learned counsel for the appellants/defendants would submit that the defendants had taken the plea of adverse possession and limitation which has not been properly appreciated by the Courts below. He would further argue that the plaintiffs, who have come forward with the suit for declaring the title, has not filed any document of title, but has only filed Mortgage Deeds as Exs.A7 to 10, which would not prove the title of the plaintiffs to the suit property. That apart, they would also contend that the Will-Ex.A1 has not been proved in the manner known to law. Therefore, they would submit that the Courts below have erred in decreeing the suit.
9. Per contra, Mr.S.Thangavel, learned counsel for the respondents 1 and 2 / Caveators would submit that the Will has been proved by examining the attesting witness-P.W2 and that apart, the plaintiffs had filed Exs.A7 to A9, which are the Mortgage Deeds created in the year 1921, 1927, 1962 and also Ex.A19-Sale Deed dated 28.10.2002 to prove that the plaintiffs and prior to them, the predecessor-in-title have been in exclusive possession and enjoyment of the suit property. He would submit that the plea of adverse possession has not been proved by the defendants. He https://www.mhc.tn.gov.in/judis 7 S.A.No.541 of 2021 would further submit that the defendants had not pleaded limitation and now for the first time its being raised and therefore, the well considered judgment and decree of the Courts below cannot be upset in this second appeal.
10. Heard the learned counsel on either side and perused the materials available on record.
11. The plaintiffs have come to Court stating that the suit property and its larger extent belonged to them ancestrally. To prove the continued possession and enjoyment of the same, they have marked Exs.A7 to A9, which are the Mortgage Deeds executed in respect of the suit properties starting from the year 1921 onwards. The Will executed by Ramalinga Gounder in favour of the plaintiffs has been proved in the manner known to law by examining P.W2, the Executor of the Will. The defendants have filed their written statement, in which, they have denied the title of the plaintiffs and stated that they are in possession of the same without pleading the adverse possession. The possession of the property by the defendants is admitted by the plaintiffs, who would submit that the defendants are in permissive occupation of the property. The defendants have not been able to prove that they have set up the https://www.mhc.tn.gov.in/judis 8 S.A.No.541 of 2021 plea of adverse possession, since no where in the written statement has the plea been taken. The records would further show that the first defendant had filed an additional written statement taking the plea of limitation. The order admitting the additional written statement in I.A.No.9 of 2014 was taken up on revision by this Court in C.R.P(PD).No.552 of 2015. On 22.12.2017, the statement was directed to be returned and therefore, the plea of limitation has also not been taken up, since it is a question of both fact as well as law. The fact that the defendants plead adverse possession only strengthens the plea of the plaintiffs that they are the owners of the suit property who have permitted the defendants to reside in the suit lands. Therefore, I see no reason to disagree with the judgment and decree of the Court below which have concurrently, on perusing the evidence come to the conclusion that the suit has to be decreed and the defendants have not proved their case. The plea of limitation has also not been raised by the defendants. Therefore, In these circumstances, this Second Appeal does not give rise to question of law much less than a substantial question of law and therefore, is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
23.09.2022 https://www.mhc.tn.gov.in/judis 9 S.A.No.541 of 2021 Index : Yes/No Speaking order/non-speaking order srn To:
1. The I Additional Sub Judge, Erode,
2. The Principal District Munsif, Erode.
3. The Section Officer, V.R.Section, High Court, Madras https://www.mhc.tn.gov.in/judis 10 S.A.No.541 of 2021 P.T.ASHA, J., srn S.A.No.541 of 2021 and C.M.P.No.11301 of 2021 23.09.2022 https://www.mhc.tn.gov.in/judis 11