Madras High Court
Dravidamani Alias Thamizhkumari vs Ramanathan Alias Ramu on 18 August, 2021
S.A.Nos.141 of 2010 & 967 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.08.2021
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
S.A.Nos.141 of 2010 & 967 of 2011
Dravidamani alias Thamizhkumari ... Appellant in both S.As
..Vs..
Ramanathan alias Ramu ... Respondent in both S.As
PRAYER in S.A.No.141 of 2010 : Second Appeal filed under Section
100 of the C.P.C., 1908 against the decree and Judgment dated
17.06.2008 in A.S.No.55 of 2007, on the file of the Learned Subordinate
Judge, Nagapattinam, upholding the decree and judgment dated
07.08.2006 in O.S.No.28 of 2003, on the file of the Learned District
Munsif , Nagapattinam.
PRAYER in S.A.No.967 of 2011 : Second Appeal filed under Section
100 of the C.P.C., 1908 against the decree and Judgment dated
22.12.2006 in A.S.No.55 of 2006, on the file of the Learned Subordinate
Judge, Nagapattinam, upholding the decree and judgment dated
07.08.2006 in O.S.No.370 of 2004, on the file of the Learned District
Munsif, Nagapattinam.
http://www.judis.nic.in
S.A.Nos.141 of 2010 & 967 of 2011
In both S.As:
For Appellant : Mr.Mahamandra Rajalakshmi
For Respondent : Ms.S.R.Sumathy
COMMON JUDGMENT
The unsuccessful plaintiff before both the Courts below, has
filed the present appeals.
2.For the sake of convenience, the parties are referred to as per
their ranking before the trial Court and in appropriate places, their ranking
in the present appeals would also be indicated.
3.The brief facts of the case of the plaintiff are as follows:
The suit property and other properties originally belonged to
one Kothanda Ramasamy Naidu and he was in possession and enjoyment
of the same. A suit was filed before the Subordinate Court, Nagapattinam,
in respect of the present suit property and other properties and in the said
suit, a compromise decree was passed wherein some properties including
the present suit property was allotted to the share of the plaintiff's father
late Kothanda Ramasamy Naidu. Late Kothanda Ramasamy Naidu leased
http://www.judis.nic.in
S.A.Nos.141 of 2010 & 967 of 2011
out the suit property in favour of the defendant's father. Thereafter, in
view of the release deed dated 22.11.1993 (Ex.A4) executed by the
mother and other brothers of the plaintiff, the plaintiff became the
absolute owner of the suit property. The plaintiff's father also built a
thatched house in the suit property during the year 1982 and was also
paying tax for the said house. However, the defendant, denying the title of
the plaintiff, is attempting to trespass into the suit property. He, therefore,
filed the following suits.
i. O.S.No.28 of 2003 seeking for a relief of permanent injunction
restraining the defendant from constructing any house in the suit
property from the defendant.
ii. O.S.No.370 of 2004 seeking for a relief of declaration of title to the
suit property in favour of the plaintiff and also for recovery of
possession of the same.
4.The suit was resisted by the defendant on the following
grounds:
i. A house was actually built by the defendant's father 35 years back
from the date of filing of the suit.
ii. The suit property was never leased out in favour of the defendant's
father as alleged by the plaintiff.
http://www.judis.nic.in
S.A.Nos.141 of 2010 & 967 of 2011
iii. Since the defendant has been in possession and enjoyment of the
suit property for more than 35 years he has prescribed title by
adverse possession and prescription over the suit property.
5.The trial Court after framing necessary issues and after full
contest, dismissed both the suits filed by the plaintiff on the following
grounds :
i. The plaintiff has not established his title over the suit property.
ii. The plaintiff has also not established that the plaintiff's father
leased out the suit property in favour of the defendant.
iii. No documentary evidence was adduced by the plaintiff to establish
any of his contentions.
iv. The defendant has prescribed title over the suit property by adverse
possession and prescription as he is in possession of the suit
property for more than 35 years.
6.Aggrieved over the decree and judgment dated 07.08.2006
passed by the learned District Munsif Judge, Nagapattinam, the plaintiff
filed an appeal in A.S.No.55 of 2007 before the learned Subordinate
Judge, Nagapattinam. The first appellate court, after analysing the
http://www.judis.nic.in
S.A.Nos.141 of 2010 & 967 of 2011
evidence, upheld the findings of the trial court and dismissed the appeal.
Aggrieved over the same, these present Second Appeals have been filed
by the plaintiff.
7.Notice of motion was issued to the respondent and after
several adjournments, the case was posted for hearing today. The
appellant has raised the following substantial questions of law in the
Memorandum of Second Appeal.
i. Whether the judgment and decree of the Courts below are not
vitiated for its total non consideration of Ex.A1 and Ex.A2 in a
proper perspective?
ii. Whether in law the plaintiff's title over the suit property has got
extinguished when the defendant miserably failed to prove his
claim of adverse possession?
8.At the outset, it may be observed that the plaintiff claims title
over the suit property mainly based on a release deed (Ex.A4) dated
22.11.1993. The properties released in favour of the plaintiff are indicated
in the said deed as
(1) S.No.671 measuring vacant land to an extent of 6000 Sq.ft.
http://www.judis.nic.in
S.A.Nos.141 of 2010 & 967 of 2011
(2) S.No.110 measuring to an extent of 3025 sq. ft.
(3) the house built thereof.
9.The contention of the plaintiff is that the property in S.No.671
was allotted to his father late Kothanda Ramasamy Naidu in an earlier suit
in O.S.No.28 of 1923 on the file of the learned Subordinate Judge,
Nagapattinam. Ex.A1 is the copy of the decree passed in O.S.No.28 of
1923 dated 25.09.1925. The S.No.671 is not indicated in the decree. The
plaintiff has not adduced any documentary evidence to correlate the
survey numbers mentioned in the suit in O.S.No.28 of 1923 with the
survey numbers indicated in Ex.A1.
10.Mr.Mahamandra Rajalakshmi, learned counsel appearing for
the plaintiff contended that though the plaintiff has filed the tax receipts
Ex.A10 & Ex.A11 in respect of the house built on the suit property, both
the Courts below failed to consider the same. In the instant case, the
plaintiff has filed the suit in O.S.No.370 of 2004 for declaration of his
title to the suit property and also for recovery of possession of the same
from the defendant. It is settled law that the plaintiff should prove his case
to the hilt and cannot pick holes in the defendant's title and on that score
http://www.judis.nic.in
S.A.Nos.141 of 2010 & 967 of 2011
seek for a relief of declaration and injunction. As rightly observed by both
the Courts below, the plaintiff has not adduced any documents to
establish his title over the suit properties. Both the Courts below after
appreciating the evidence on record, had come to a conclusion that the
plaintiffs are not in possession of the suit property. They have also given
cogent and acceptable reasons in their judgments and by no stretch of
imagination, the findings recorded by both the Courts below can be said
to be perverse. In such circumstances, there is no substantial question of
law involved in the present appeals.
11.Accordingly, these second appeals are dismissed. No costs.
The decree and judgment of both the Courts below are upheld.
18.08.2021
Index : Yes/No
Internet : Yes/No
mtl
To
1. The Subordinate Judge, Nagapattinam,
2. The District Munsif Judge, Nagapattinam.
3. The Section Officer, VR Section, High Court, Madras
R. HEMALATHA, J.
http://www.judis.nic.in
S.A.Nos.141 of 2010 & 967 of 2011
mtl
S.A.Nos.141 of 2010 & 967 of 2011
18.08.2021
http://www.judis.nic.in
