Madras High Court
Sankaran vs Chelladurai on 7 April, 2021
S.A.(MD)No.303 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.303 of 2013
and
M.P.(MD)Nos.1 & 2 of 2013
1.Sankaran
2.Arumugam
3.Vallinayakam ... Appellants
-Vs-
Chelladurai ...Respondent
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the Judgment and Decree passed in A.S.No.46/06, dated
28.04.2009 on the file of the Subordinate Court, Tuticorin confirming the
Judgment and Decree passed in O.S.No386 of 2002, dated 14.12.2005 on
the file of the District Munsif Court, Srivaikundam.
For Appellants : Mr.H.Arumugam
For Respondent : Mr.G.Prabhurajadurai
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S.A.(MD)No.303 of 2013
JUDGMENT
Heard the learned counsel on either side.
2.The appellants, in this second appeal, are the defendants in O.S.No.
386 of 2002 on the file of the District Munsif Court, Srivaikundam.
The said suit was instituted by the respondent herein namely Chelladurai.
The suit was one for declaration of the plaintiff's title over the first schedule
property and for consequential injunction. The other prayer sought in the
suit was for removal of constructions put up in the second schedule which
according to the plaintiff was part of the first schedule. The appellants
herein filed a written statement, in which, they denied the plaintiff's title in
toto. The allegation that they had committed encroachment on the second
schedule was also denied. In fact, in paragraph No.8 of the written
statement, it is stated that the plaint second schedule and the property lying
to its west are the property described in the schedule. In paragraph No.9 of
the written statement, it is claimed that the schedule of property as set out in
the written statement is the property of the defendant by adverse possession.
As many as six issues were framed. The plaintiff examined himself as
P.W.1 and one Velu as P.W.2. On the side of the plaintiff, A1 to A6 were
marked. On the side of the defendants, the second defendant Arumugam
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S.A.(MD)No.303 of 2013
was examined as D.W.1. Ex.B1 to Ex.B13 were marked. Subsequently,
Ex.B13 was eschewed on the ground that it was an unregistered document.
The learned trial Judge decreed the suit as prayed for by Judgment and
Decree dated 14.12.2005. Questioning the same, the defendants filed
A.S.No.46 of 2006 before the Sub Court, Thoothukudi. Vide Judgment
dated 28.04.2009, the appeal was dismissed. The second appeal was listed
for admission on 25.04.2013 and the following substantial questions of law
were framed.
“(I) Whether the respondent / plaintiff has not proved that the
suit second schedule property forms part of the first schedule
property and also not proved the alleged encroachment in any
manner whether the courts below are right in decreeing the suit?
(II) Whether the Courts below are right in giving a finding that
the starting point of limitation can be taken from the date of
purchase of property by the respondent even though the alleged
construction and encroachment was made even before six years of
purchase and the vendor had admitted the same and not taken any
steps?
(III) Whether the Courts below erred in decreeing the suit
which is barred under the law of limitation by wrongly interpreting
Article 58 of Indian Limitation Act, 1963 and thus, the same
warrants interference by this Court?”
Notice was issued to the respondents.
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S.A.(MD)No.303 of 2013
3.The learned counsel appearing for the appellant contended that the
plaintiff, having come out with a specific case that the second schedule has
been encroached upon, ought to have filed an application for appointment
of advocate commissioner to identify the encroached portion. The
defendants have specifically questioned the very identity of the property. In
as much as the identity of the property was not established, the Courts
below erred in decreeing the suit as prayed for. He, therefore, contended
that the first question of law may be answered in favour of the appellant and
the appeal may be allowed. He however fairly stated that when a similar
substantial question of law arose on an earlier occasion, the Court after
setting aside the Judgment passed by the Court below, had remanded the
matter. He also pointed out that the Courts below committed a serious
error by computing the period of limitation from the date of purchase of the
property by the plaintiff.
4.Per contra, the learned counsel for the respondent submitted that the
Courts below have concurrently found the issues rightly in favour of the
plaintiff and that the same do not call for any interference.
5.I carefully considered the rival contentions and went through the
evidence on record.
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S.A.(MD)No.303 of 2013
6.The specific case of the plaintiff is that the property in question
originally belonged to one Mayandi. He had purchased the property way
back on 04.04.1988 vide Ex.A1. Mayandi had also obtained Ex.A2-
Natham Patta in his favour. Mayandi was working in BSF. He sold the
property in favour of the plaintiff Chella Durai vide Ex.A3 dated
08.05.2002. If the plaint prayer is carefully perused, it is actually a suit for
declaration and recovery of possession. The other relief is for removal of
the encroachment committed on second schedule and for handing over the
possession to the plaintiff. Only if the consequential prayer is construed as
one of injunction, then, suit is barred by limitation and the questions of law
regarding limitation as framed above may have to be answered in favour of
the appellant. When he sought recovery of the possession, limitation
would be 12 years and not three years. It is also seen that the suit has been
filed only under Section 25(a) of the Tamil Nadu Court Fees and Suits
Valuation Act, 1955. Court fee has been paid only on that basis. Thus, it is
obvious that the suit prayer is for declaration and for possession of the
property. Therefore, I have to hold that the suit has been filed well in time
and suit cannot be said to be barred by limitation. The questions 2 and 3 as
framed above, are answered in favour of the respondent and against the
appellants.
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S.A.(MD)No.303 of 2013
7.Let me come to the main contention urged by the learned counsel
appearing for the appellants as to whether interference is called for because
the plaintiff has not filed any petition for appointing advocate commissioner
for identifying the property in question.
8.The case of the plaintiff is that he purchased the property vide
Ex.A3 dated 08.05.2002. The plaintiff's vendor traced his title to Ex.A1
dated 04.04.1988. Of-course, the parent document turned out to be an
unregistered document dated 23.01.1975. It was originally marked as
Ex.B13, but realizing its inadmissibility, it was subsequently eschewed.
Per contra, the case of the defendants rests only on Ex.B9. It is a natham
patta issued by the competent authority.
9.The learned counsel appearing for the plaintiff would point out that
in Ex.B9, on the northern and southern side, east-west measurements are
only eight meters. But then, in the settlement deed- Ex.B.12 executed in
favour of the second and third defendants namely Arumugam and
Vallinayakam, the east-west measurements have expanded to 41 feet which
is in excess of the measurements found in Ex-B9 patta.
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S.A.(MD)No.303 of 2013
10.I carefully went through the contents of the written statement.
Nowhere, the defendants have claimed that the second schedule of the
plaint cannot be identified. In fact, their claim is that in respect of the
second schedule, title has passed on to them by virtue of adverse
possession. When the identity of the property is not really in dispute, the
plaintiff rightly did not take out any application for appointing an advocate
commissioner. The specific case of the plaintiff is that the second schedule
is a part of the first schedule. This has not been disputed by the defendants.
When the defendants themselves have not disputed the same, it is not
necessary for the plaintiff to prove it. Therefore, the first substantial
question of law is answered in favour of the respondent and against the
appellants herein. I find no ground to interfere. The second appeal is
dismissed. No costs. Consequently, connected miscellaneous petitions are
closed.
07.04.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.303 of 2013
G.R.SWAMINATHAN, J.
rmi
To
1.The District Munsif Court, Srivaikundam .
2.The Subordinate Court, Tuticorin .
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.303 of 2013
and
M.P.(MD)Nos.1 & 2 of 2013
07.04.2021
https://www.mhc.tn.gov.in/judis/
