Madras High Court
Yesappa @ Chinnasamy vs Ammaiamma on 2 August, 2021
S.A. No.65 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.08.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A. No.65 of 2007
Yesappa @ Chinnasamy ... Appellant
Vs
1.Ammaiamma
2.Duraisamy
3.Jayamma
4.Periyakka ... Respondents
PRAYER: Second Appeal filed under Section 100 C.P.C. against the
Judgment and Decree in A.S.No.24 of 2005 on the file of the Sub court,
Hosur dated 23.12.2005 in confirming the judgment and decree in
O.S.No.430 of 1985 on the file of the District Munsif Court, Hosur dated
30.03.2005.
For Appellant : Ms.Abirami
for Mr.V.Raghavachari
For Respondent 1 : Mr.S.Sivashanmugam
For Respondents 2 to 4 : No appearance
1/10
https://www.mhc.tn.gov.in/judis/
S.A. No.65 of 2007
JUDGMENT
(Heard through video conferencing)
This second appeal has been filed challenging the concurrent findings
of the courts below.
2. The Appellant is the second defendant in the suit O.S.No.430 of
1985 on the file of the District Munsif Court, Hosur. The suit was filed by
the first respondent/plaintiff originally for declaration and injunction against
the defendants 1 to 8.
3. For the sake of convenience, in the forthcoming paragraphs, the
parties are referred to as per their litigative status in the suit.
4. It is the case of the plaintiff that she is the absolute owner of the
suit schedule property having got the same under a registered gift deed
dated 07.03.1993 which has been marked as Ex.A1 before the trial court.
However, the said contention has been disputed by the defendants as
according to them, they are the owner of the suit property. The suit was
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S.A. No.65 of 2007
decreed in favour of the plaintiff by the trial court on 29.08.1994. Aggrieved
by the same, the defendants 1 and 2 preferred a regular appeal before the
Sub Court, Hosur in A.S.No.57 of 1996. By judgment and decree dated
07.02.1997, the lower appellate court in A.S.No.57 of 1996 set aside the
decree of the trial court and remanded the matter back to the trial court by
appointing an advocate commissioner for fresh consideration.
5. Since during the pendency of the suit, after the remand order,
passed by the lower appellate court, the plaintiff having been dispossessed,
he was constrained to amend the relief sought for in the plaint by including
the relief of possession which was allowed by the trial court. The first and
sixth defendants died during the pendency of the suit and hence, the legal
representative of the deceased sixth defendant was brought on record as the
ninth defendant and the legal representatives of the deceased first defendant
were brought on record as defendants 10 to 12.
6. After remand, the trial court considered the issue afresh and
permitted the respective parties to adduce oral and documentary evidence.
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S.A. No.65 of 2007
The Advocate commissioner appointed by the lower appellate court has also
inspected the suit schedule property and also submitted his report which was
also considered by the trial court. By judgment and decree dated
30.03.2005, the trial court once again decreed the suit O.S.No.430 of 1985
in favour of the plaintiff by granting the relief of declaration of title as well
as possession in his favour. Aggrieved by the judgment and decree dated
30.03.2005 passed in O.S.No.430 of 1985 by the District Munsif Court,
Hosur, the first defendant along with defendants 10 to 12 preferred a regular
appeal before the Sub Court, Hosur in A.S.No.24 of 2005. The lower
appellate court by its judgement and decree dated 23.12.2005 passed in
A.S.No.24 of 2005 confirmed the findings of the trial court by dismissing
the appeal. Aggrieved by the same, this second appeal has been filed by the
second defendant.
7. This Court has also issued notice in the main second appeal, when
it came up for admission in the year 2007 and till date, the second appeal
has not been admitted.
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S.A. No.65 of 2007
8. The Appellant has raised the following substantial questions of
law in the grounds of appeal filed before this Court:
“a.Whether the courts below are right in declaring
the right of the plaintiff when he had not established to the
extent as prayed for?
b. Whether the findings of the courts below are right
in decreeing the suit when the plaintiff's vendor has not
absolute right to the suit property?
c. Whether the courts below are right in upholding
the claim of the plaintiff when neither right nor possession
had been proved?
d. Whether the suit should not fail on account of the
plaintiff failing to prove his absolute claim over the
property?
e. Whether the suit as framed is maintainable in
law?
f. Whether the suit is not bound to be rejected as the
boundary recitals in the deed produced by the plaintiff and
the suit property differs and the identity of the property
had not been established?”
9. Learned counsel for the Appellant/second defendant would
primarily submit that the suit is bound to be rejected as the boundary details
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S.A. No.65 of 2007
in the gift deed marked as Ex.A1 produced by the plaintiff and the suit
schedule property differs and the identity of the property has not been
established. He drew the attention of this Court to the gift deed Ex.A1 as
well as the suit schedule as well as the findings of the courts below and
would submit that the burden is on the plaintiff to prove her case that she is
the owner of the suit schedule property and having failed to prove the same
through exhibits marked through her before the trial court, a perverse
finding has been given by the courts below accepting the claim of the
plaintiff.
10. However, the learned counsel for the Respondents after drawing
the attention of this Court to the findings of the courts below would submit
that the plaintiff has proved her case through the evidence placed on record
that she is the absolute owner of the suit schedule property. In
particular, he drew the attention of this Court to the oral evidence of the
second defendant (DW1) before the trial court, wherein, he has admitted
that 14 cents in which the disputed well is situated belongs to the plaintiff.
He also drew the attention of this court to the findings of the courts below
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S.A. No.65 of 2007
wherein it has been observed that the defendant has not filed any objection
to the advocate commissioner's report which supports the case of the
plaintiff. He would further submit that gift deed (Ex.A1) a registered
document is of the year 1973 and till date, the said document has not been
challenged before any court of law by the defendant and that being the case,
he would submit that the defendant has no right to challenge the same in
this proceeding.
Discussion:
11. Admittedly, the registered gift deed dated 07.03.1973 marked as
Ex.A1 before the trial court which is the basis for the claim made by the
plaintiff remains unchallenged till date. The lower appellate court in the
impugned judgment has also taken into consideration the admission made
by the second defendant (DW1) in his oral evidence that the disputed well is
situated only in the property owned by the plaintiff. Survey number in
which the disputed well is situated is found in Survey No.686/2. No
documentary evidence has been produced by the second defendant before
the trial court to prove that they are owning the lands in survey No.686/2.
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S.A. No.65 of 2007
12. Before the trial court, the plaintiff has filed six documents which
were marked as Ex.A1 to Ex.A6 and two witnesses were examined on his
side namely PW1 and PW2. On the side of the second defendant, two
documents were filed which were marked as Ex.B1 to Ex.B2 and five
witnesses were examined on his side namely DW1 to DW5. The trial court
has also marked six documents as Court exhibits which includes, the
advocate commissioner's report and the sketch.
13. None of the documentary evidence produced by the defendant
before the trial court would prove that the second defendant is the owner of
the suit schedule property. When all the documentary evidence placed on
record infers that the plaintiff is the absolute owner of the suit schedule
property, it is clear that the plaintiff has discharged his burden to prove her
case as per the provisions of Section 101 of the Indian Evidence Act.
Having discharged her burden, it is the responsibility of the second
defendant to disprove the contention of the plaintiff which he has miserably
failed before the courts below.
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S.A. No.65 of 2007
14. The Commissioner's report also which was marked as exhibits
before the trial court also proves that the possession of the suit schedule
property is with the plaintiff as held by the courts below. The issues raised
before this Court by the Appellant/plaintiff are purely questions of fact
which have been correctly and adequately considered by the courts below.
15. For the foregoing reasons, there is absolutely no substantial
question of law involved in this second appeal. Accordingly, this second
appeal is dismissed and the judgment and decree passed by the courts below
are hereby confirmed. No costs.
02.08.2021
nl
Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1. The Sub court, Hosur
2. The District Munsif Court, Hosur
https://www.mhc.tn.gov.in/judis/
S.A. No.65 of 2007
ABDUL QUDDHOSE, J.
nl
S.A. No.65 of 2007
02.08.2021
https://www.mhc.tn.gov.in/judis/
