Madras High Court
Guruvaiya vs Vellai Samy on 9 April, 2021
SA(MD)No.333 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 09.04.2021
CORAM
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
SA(MD)No.333 of 2017
1.Guruvaiya
2.Gurusamy ...Appellants 1 & 2/Respondents 1 & 2/
Defendants 1 & 2
3.Pitchiammal
4.Guruvammal
5.Veerammal ...Appellants 3 to 5/Respondents 3 to 5/
Respondents 3 to 5/3rd Party
Vs.
Vellai Samy .. Respondent/Appellant/Plaintiff
PRAYER:- Second Appeal is filed under Section 100 of Civil Procedure
Code against the Judgment and Decree dated 14.03.2017 in A.S.No.57 of
2009 on the file of the Sub Court, Sankarankovil reversing the judgment and
decree dated 07.10.2009 in O.S.No.74 of 2006 on the file of the District
Munsif-cum-Judicial Magistrate Court, Sivagiri.
For Appellants : Mr.F.X.Eugene
For Respondent : Mr.M.Thirunavukkarasu
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JUDGMENT
The appellants have come up with this Second Appeal challenging the
Judgment and Decree dated 14.03.2017 in A.S.No.57 of 2009 on the file of
the Sub Court, Sankarankovil reversing the judgment and decree dated
07.10.2009 in O.S.No.74 of 2006 on the file of the District Munsif-cum-
Judicial Magistrate Court, Sivagiri.
2. The present suit in O.S.No.74 of 2006 on the file of the District
Munsif-cum-Judicial Magistrate Court, Sivagiri, was laid by the plaintiff
seeking a declaration that the second schedule property belongs to the
plaintiff and for possession of the same. On failure to hand over the same,
the defendants would be removed at their cost by the court.
3. The suit was resisted by the defendants and they prayed for
dismissal of the suit.
4. At trial, the plaintiff was examined as P.W.1 and Ex.A1 to Ex.A.5
were marked. The first defendant was examined as D.W.1 and Ex.B.1 to
Ex.B.4 were marked. Upon consideration of the evidence on record, the
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learned trial Judge concluded that the plaintiff has not proved that 32 cents
of land belonged to him through oral and documentary evidence. On the
above conclusion, the learned trial Judge dismissed the suit.
5. Aggrieved, the plaintiff preferred an appeal in A.S.No.57 of 2009.
The Appellate Court, on re-appreciation of the evidence on record, allowed
the appeal. Aggrieved, the defendants 1 and 2 and the third parties have
come up with this Second Appeal.
6. The following questions of law have been framed by this Court at
the time of admission:
i) Whether the first Appellate Court is correct in giving
a finding, as if the gift or settlement could not be revoked
unilaterally?
ii) Whether the first Appellate Court is correct in
holding that the recovery of possession of property could be
granted, in the absence of specific property mentioned, as
contemplated under Order 7 Rule 3 C.P.C
iii) Whether the first Appellate Court is correct in
holding that an oral exchange in the family arrangement is
required to be registered under the Registration Act and for
stamp duty as contemplated in Section 54 of Transfer of
Property Act and liable Section 35 of Stamp Act and Section
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17 of the Registration Act?
7. I have heard Mr.F.X.Eugene, learned counsel appearing for the
appellants and Mr.M.Thirunavukkarasu, learned counsel appearing for the
respondent. I have also perused the materials placed on record.
8. The learned counsel for the appellant would contend that the first
Appellate Court need not have interfered with the well analyzed judgment
and decree of the trial court and the judgment of the first appellate court is
against law, evidence and probabilities of the case. Therefore, he prays for
setting aside the same.
9.On hearing the submissions made on either side, I am of the view
that without having a definite boundaries, identification of the property
could not be done properly. The first appellate court ought to have allowed
the Interlocutory Applications in I.A.No. 248 of 2010 and I.A.No.66 of
2011 for appointment of Advocate Commissioner and for marking
additional documents. In the event of Advocate Commissioner measuring
the property with the help of surveyor, then, it would be possible for the
court to come to a correct conclusion. Therefore, this Court, without going
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into the questions of law framed by this Court, is inclined to remand back
the matter to the first appellate court for fresh consideration.
10. In view of the above, the Judgment and Decree dated 14.03.2017
in A.S.No.57 of 2009 on the file of the Sub Court, Sankarankovil reversing
the judgment and decree dated 07.10.2009 in O.S.No.74 of 2006 on the file
of the District Munsif-cum-Judicial Magistrate Court, Sivagiri, is set aside.
The matter is remanded back to the first Appellate Court. I.A.Nos.248 of
2010 and I.A.No.66 of 2011 are allowed. An Advocate Commissioner shall
be appointed. The Advocate Commissioner shall measure the property with
the help of the surveyor and file his report along with sketch and plan. On
filing of his report and plan, the first appellate court shall take fresh
evidence only in respect of the report and plan of the Advocate
Commissioner and the additional documents sought to be marked. After
completion of all the formalities, the first Appellate Court shall pass a fresh
judgment, in the light of the evidence both oral and documentary, already on
record and in the light of the report and plan of the Advocate Commissioner
and the additional documents to be marked, on merits and in accordance
with law, within a period of six months from the date of receipt of a copy of
this judgment.
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11. In the result, this Second Appeal is allowed to the extent indicated
above. No costs.
09.04.2021
Index : Yes/No
Internet: Yes/No
CM
To:
1.The Sub Court, Sankarankovil
2.The District Munsif-cum-Judicial Magistrate Court,
Sivagiri.
3.The Section Officer VR Section,
Madurai Bench of Madras High Court,
Madurai.
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SA(MD)No.333 of 2012
A.A.NAKKIRAN.J.,
CM
SA(MD)No.333 of 2017
09.04.2021
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