Madras High Court
Periasami vs Krishnan on 8 April, 2021
1 S.A.(MD)NO.166 OF 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.166 of 2012
1. Periasami
2. Raja @ Perumal Thevar
3. Ulagappa Thevar ... Appellants/Appellants/
Plaintiffs
Vs.
1. Krishnan
2. Mariappan(died)
3. Jeyam
4. Ramathal
5. Poosaithai
(R-4 & R-5 are brought on record as LRs
of the deceased R-2 vide Order dated 22.01.2021
in M.P.(MD)Nos.9084 to 9086 of 2016) ... Respondents/
Respondents/
Defendants
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree passed in A.S.No.46
of 2010 dated 12.08.2011 on the file of the Sub Court,
Sankarankoil, confirming the Judgment and Decree passed in
O.S.No.308 of 2008 dated 15.07.2010 on the file of the
Additional District Munsif, Sankarankoil.
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2 S.A.(MD)NO.166 OF 2012
For Appellants : Mr.Meenakshi Sundaram,
for Mr.M.Vallinayagam.
For R-3 : Mr.D.Rajkumar,
for Mr.R.Balakrishnan.
For R-4&R-5 : Ms.M.Maria Vinola
***
JUDGMENT
The plaintiffs in O.S.No.308 of 2008 on the file of the
Additional District Munsif, Sankarankovil, are the appellants
in this second appeal.
2. The said suit was filed seeking relief of declaration
and injunction in respect of the suit property. In the said suit,
Krishnan, Mariyappan and Jeyam was shown as defendants.
The defendants filed written statement opposing the suit
claim. The parties went to trial. The second plaintiff Raja @
Perumal Thevar was examined as P.W.1 and one Subramanian
was examined as P.W.2. Ex.A.1 to Ex.A.5 were marked. On the
side of the defendants, no oral evidence was let in. However,
three documents (Ex.B.1 to Ex.B.3) were marked.
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3 S.A.(MD)NO.166 OF 2012
3. The trial Court after considering the evidence on
either side, dismissed the suit vide Judgment dated
15.07.2010. Questioning the same, the plaintiffs filed A.S.
No.46 of 2010 before the Sub Court, Sankarankovil. By
Judgment dated 12.08.2011, the Judgment of the trial Court
was confirmed and the first appeal was dismissed. Aggrieved
by the same, this second appeal came to be filed.
4. The second appeal was admitted on the following
substantial question of law:-
“When the respondents herein /
defendants have not let in any evidence to prove
their defense that they are entitled to 3.45 acres
out of 5.90 acres in the suit property by virtue of
the family arrangement and that oral partition
took place on 18.05.1968 and 04.06.1978
between the heirs of Ramaiah Thevar, whether
the Courts below are right in holding that the
defendants are having share in the suit schedule
property? “
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4 S.A.(MD)NO.166 OF 2012
5. When the matter was taken up for hearing, the
learned counsel appearing for the appellants submitted that
one more substantial question of law deserves to be framed.
6. After hearing the learned counsel appearing for the
appellants, this Court was of the view that an additional
substantial question of law has to be framed. Therefore, the
following substantial question of law was framed:-
“Even when the Courts below came to a
conclusion that these plaintiffs predecessor
Karuppayee Ammal is having title only to 2.45
acres in the suit property by accepting the
statement of the defendants, whether correct in
dismissing the suit in entirety which is against
the settled proposition of law that the civil
Courts are always having jurisdiction to grant
lesser relief and the parties should not be
denied to the relief to which they are entitled
and hence the finding of the Courts below
warrants interference under Section 100 of
C.P.C?”
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5 S.A.(MD)NO.166 OF 2012
7. As required by C.P.C., the learned counsel
appearing for the respondents was put on notice and the
learned counsel addressed the Court on both the substantial
questions of law.
8. Out of the three defendants, the first defendant
Krishnan had passed away. Likewise, the second defendant
Mariappan had also passed away. However, the appellants had
been able to implead only the legal representatives of
Mariappan, but could not implead the legal heirs of Krishnan
for want of details.
9. I am of the view that the omission to bring the legal
representatives of Krishnan on record need not come in the
way of taking the second appeal for disposal on merits. This is
because Krishnan and Mariappan are brothers and before
filing the present suit, Krishnan and Mariappan had sold 3.45
acres of the suit schedule property in favour of the third
defendant Jeyam. Jeyam is represented by counsel. In fact in
view of the alienation made by Krishnan and Mariappan in
favour of Jeyam, it is only Jeyam who has stake in the matter.
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10. The case of the plaintiffs is that the suit schedule
property is comprised in Survey No.121/1 in Maruthankinaru
Village, Melaneelithanallur, Sankarankovil Taluk, Thenkasi
District and measures 5 acres 90 cents. It belonged to one
Karuppayeeammal. The said Karuppayeeammal sold the
property vide sale deed dated 19.12.1975. It is a registered
document. Sale deed was executed in favour of Periyasamy
Thevar who is none other than the father of the appellants
herein. Patta was also changed. Periyasamy Thevar appears to
have died shortly thereafter. The case of the plaintiffs is that
the suit schedule property has been in their possession and
enjoyment ever since. Ex.A.2 Patta has been issued in favour
of the plaintiffs. According to the plaintiffs, Krishnan and
Mariyappan filed O.S.No.250 of 2008 on the file of the
Additional District Munsif Court, Sankarankovil, against the
plaintiffs seeking relief of declaration and injunction. They
also tried to bring coercive pressure on the plaintiffs through
the local police. That necessitated filing of the instant suit,
namely, O.S.No.308 of 2008.
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7 S.A.(MD)NO.166 OF 2012
11. Before the Court below, the second plaintiff Raja
@ Perumal Thevar examined himself as P.W.2. He claimed
that the entire suit property belongs only to him and that his
other brothers do not have any right in the property. The trial
Court felt that this was running contrary to the case of the
plaintiffs. When the plaintiffs have moved the Court for
declaration that the property belongs to them, it is not open to
one plaintiff to make an exclusive claim. This contradiction
between pleadings and testimony made the learned trial
Munsif to take an adverse view of the case of the plaintiffs.
That apart in the written statement, the defendants have
specifically challenged the title of Karuppayeeammal over the
entire suit schedule property. The defendants had
categorically asserted that the suit schedule property stood in
the name of four persons, namely, Karuppayeeammal,
Ramasamy Thevar, Periyasamy Thevar, Chellaiya Pillai.
Defendants 1 and 2 are sons of Ramaiah Thevar. According to
them, they had title and interest over 3.45 acres of the suit
schedule property. When the defendants have thus questioned
the title of Karuppayeeammal, it is not enough for the
plaintiffs to simply file Ex.A.1 sale deed executed by
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8 S.A.(MD)NO.166 OF 2012
Karuppayeeammal covering the entire suit property in favour
of Periyasamy Thevar. The plaintiffs were obliged to prove
that Karuppayeeammal had title over the entire suit property.
The plaintiffs had miserably failed to do so. That apart P.W.2
who is an independent witness and also the Village
Administrative Officer had undermined the case of the
plaintiffs. Through him, patta was also marked. 'A' Register in
respect of the suit property contains not only the name of
Karuppayammal but also three other persons. The revenue
records stood in the name of four persons. This clearly
probablised the defence taken by the defendants. For these
two reasons, the learned trial Munsif chose to dismiss the suit.
12. For the very same reasons, the first appellate
Court had also sustained the decision of the trial Court.
13. Though I am inclined to sustain the aforesaid
reasons given by the Court below, as rightly pointed out by the
learned counsel appearing for the appellants, the Courts
below could not have dismissed the suit in toto. It is well
settled that even if the plaintiff is unable to make out a case
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9 S.A.(MD)NO.166 OF 2012
for grant of the entire relief, still if he is entitled to lesser
relief, the Courts below are not having power but are also
obliged to grant it.
14. Order 7 Rule 7 of C.P.C. enables the Court to
grant lesser relief to which the plaintiffs may otherwise be
entitled to. In the case on hand, the specific stand of the
defendants is that they are entitled to 3 acres and 45 cents in
the suit schedule property. In fact Ex.A.3 sale deed was
executed by defendants 1 and 2 in favour of the third
defendant Jeyam measuring 3.45 acres in the suit schedule
property. The learned counsel appearing for the appellants
draws my attention to Ex.A.4. Ex.A.4 is nothing but the plaint
filed by defendants 1 and 2 in O.S.No.250 of 2008 before the
very same Court. The said suit contains three schedules. The
first schedule contains the entire extent of the property
measuring 5 acres 90 cents, second schedule covers property
measuring 3 acres 45 cents and the third schedule covers
property measuring 2 acres 45 cents. The specific case of
defendants 1 and 2 is that the second schedule property
belonged to them. The third schedule property is only in
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10 S.A.(MD)NO.166 OF 2012
possession and enjoyment of the plaintiffs/appellants herein.
As rightly pointed out by the learned counsel appearing for
the appellants, as per Section 18 of the Indian Evidence Act,
statements made by a party to the proceeding or by an agent
to any such party can be taken as an admission. In the case on
hand, the defendants did not enter into the witness box to
controvert the averments made in Ex.A.4 plaint. Interest of
justice obviously required that going by the case of the
defendants themselves, appellants' title and possession over
the remaining extent of 2 acres 45 cents ought to have been
declared. The defendants' specific case in the written
statement is that they are entitled to possession of 3 acres 45
cents. Therefore, to this extent, the Judgments of the Courts
below are interfered with. While answering the first
substantial question of law against the appellants, the second
substantial question of law is answered in favour of the
appellants. The plaintiffs are entitled to declaration and
injunction in respect of the third schedule property set out in
the plaint in O.S.No.250 of 2008 on the file of the Additional
District Munsif Court, Sankarankovil. Likewise, the defendants
are entitled to declaration and injunction in respect of the
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11 S.A.(MD)NO.166 OF 2012
second schedule property in O.S.No.250 of 2008. The benefit
of the declaration and injunction will enure in favour of the
third defendant Jeyam. The plaint in O.S.No.250 of 2008 on
the file of the Additional District Munsif Court, Sankarankovil,
will form part of the decree.
15. This second appeal stands partly allowed. No
costs.
08.04.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Sub Judge,
Sankarankoil.
2. The Additional District Munsif,
Sankarankoil.
3. The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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12 S.A.(MD)NO.166 OF 2012
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.166 of 2012
08.04.2021
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13 S.A.(MD)NO.166 OF 2012
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