Madras High Court
Dhanasekaran vs Nagappan on 19 August, 2021
S.A.No.593 of 2021 &
CMP No.12542 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.08.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.593 of 2021
and CMP No.12542 of 2021
Dhanasekaran ... Appellant
Vs.
Nagappan ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the Judgment and Decree of dismissal, dated
06.10.2020 in A.S.No.18 of 2017 on the file of the Subordinate Judge,
Madurantakam, confirming the Judgment and Decree, dated 07.12.2015 in
O.S.No.71 of 2013 on the file of the learned District Munsif, Madurantakam
insofar as it is against the appellant.
For Appellant : Mr.D.Saikumaran
1/8
https://www.mhc.tn.gov.in/judis/
S.A.No.593 of 2021 &
CMP No.12542 of 2021
JUDGMENT
The unsuccessful plaintiff before the Courts below has filed this
Second Appeal, challenging the Judgment and Decree in A.S.No.18 of 2017
of the learned Subordinate Judge, Madurantakam confirming the Judgment
and decree in O.S.No.71 of 2013 of the learned District Munsif,
Madurantakam.
2. The suit in O.S.No.71 of 2013 was filed by the appellant/plaintiff
for a bare injunction, restraining the defendant from interfering with his
peaceful possession and enjoyment of the suit properties. The suit
properties were four items of the properties comprised in Ottakovil Madura
Mettupalayam Village, Madurantakam Taluk comprised in S.No.241 (0.82
cents), S.No.242 (0.92 cents), S.No.160 (1 acre) and S.No.654 (0.60 cents).
3. The appellant's case is that the suit property was a Maikkal
Poramboke and was owned by his father who had taken possession of the
same four decades ago. His father had developed the said land and made it
cultivable. He paid 'B' Memo charges in respect of the suit property to the
Government. By an unregistered Will, dated 02.08.2003, the appellant's
https://www.mhc.tn.gov.in/judis/
S.A.No.593 of 2021 &
CMP No.12542 of 2021
father Kutty Gounder bequeathed the suit property on the appellant and on
his death in the year 2005, the Will came into effect. Exercising his
ownership over the suit property, the plaintiff had filed the writ Petition
before this Court in W.P.No.7547 of 2012. Excepting the plaintiff no other
person has been paying B Memo charges to the effect. While so, the
defendant who was totally stranger to the property, had attempted to
trespass into the suit property which was successfully thwarted by the
plaintiff. However, as the defendant once again disturbed the possession of
the plaintiff, the suit came to be filed.
4. The respondent/defendant had resisted the above pleadings inter
alia contending that he was in absolute possession and enjoyment of the first
item of the suit property namely S.No.241 and the defendant alone is paying
'B' memo charges to the Government and it was the plaintiff who had
attempted to disturb his possession which constrained the respondent to file
the police complaint before the Melmaruvathur Police Station. During
enquiry, the plaintiff/appellant had conceded that it was the defendant who
was in possession and enjoyment of 1st item of the suit property. As
regards, the 2nd item, the same was Tharisu Poramboke, the 3rd item was
https://www.mhc.tn.gov.in/judis/
S.A.No.593 of 2021 &
CMP No.12542 of 2021
Thangal Poramboke and the 4th item was Vayakkal Poramboke. The
defendant's father Kutty Gounder and his brothers had taken possession of
these properties 30 years back and had developed the same. They had
jointly dug a Well in the 2nd item of the suit property for irrigating the lands
in item Nos.2 and 3. The Adangal in respect of the item Nos.2 to 4 stood in
the name of Kutty Gounder since he was the eldest member of the family.
Therefore, Item Nos.2 to 4 are the joint properties of the defendant's father
and his brothers. In the year 2002, the plaintiff had attempted to throw out
the defendant from possession along with his father Kutty Gounder,
therefore, the respondent had filed the suit for permanent injunction.
Pending suit, Kutty Gounder died on 07.02.2005 and the suit came to be
dismissed after trial. Kutty Gounder died intestate leaving behind the
surviving plaintiff, defendant, 3 other sons, 3 daughters and his wife. All
the legal heirs of Kutty Gounder are in joint possession and enjoyment of
item Nos.2 to 3. The defendant is also entitled to 10/54 share in the suit
item 1. Therefore, the defendant had filed a suit for partition against the
plaintiff and others in O.S.No.117 of 2010 on the file of the learned
Subordinate Judge, Madurantakam and the suit is pending disposal. The
defendant would therefore submit that the plaintiff was not entitled to the
https://www.mhc.tn.gov.in/judis/
S.A.No.593 of 2021 &
CMP No.12542 of 2021
relief claimed by him.
5. The trial Court after framing issues, considering the oral and
documentary evidence produced before it, proceeded to dismiss the suit.
6. During trial, the plaintiff had examined himself as PW1 and three
other witnesses had examined as PW2 to PW4 and the documentary
evidence filed on the side of the plaintiff has been marked as Ex.A1 to A10.
The defendant had examined himself as DW1 and one Guruvaiyan was
examined as DW2. Exs.B1 to B7 were marked on the side of the defendant.
7. Challenging the Judgment and Decree of the trial Court, the
plaintiff/appellant had filed A.S.No.18 of 2017 on the file of the Sub Court,
Madurantakam. The Appellate Court also confirmed the Judgement and
Decree of the Courts below. It is challenging this Judgment and Decree that
the appellant is before this Court.
8. Heard the learned counsel who made his submissions for admitting
the Second Appeal.
https://www.mhc.tn.gov.in/judis/
S.A.No.593 of 2021 &
CMP No.12542 of 2021
9. The appellant who claimed that all the properties are in his
possession, has failed to prove the same. The Will which was produced by
the appellant was disbelieved by both the Courts below owing to the
inconsistencies in the evidence of the attesting witness with reference to the
place of execution and the mode of execution. The Court had also observed
that in the earlier proceedings in O.S.No.117 of 2010 (Partition Suit filed by
the defendant), the plaintiff had not referred to this Will. As regards the
possession of the properties, the Courts below have found that the
documents filed by the plaintiff does not prove his possession of the
property. In fact, Exs.A1 to A10 was in the name of Kutty Gounder and not
that of the plaintiff. However, the defendant has marked his kist receipt
Ex.B3 which contains three receipts for the fasli year 1416 and 1417 which
show that the defendant is in possession of the property by paying 'B' Memo
Charges. That apart, the defendant has produced the 'B' Memo Charges in
respect of the 1st item of suit property and the Adangal receipts for the fasli
year 1416 and 1417 which would go to show that it was the defendant who
is in possession of the property.
https://www.mhc.tn.gov.in/judis/
S.A.No.593 of 2021 &
CMP No.12542 of 2021
10. As regards the item Nos. 3 to 5, the plaintiff is not able to prove
his exclusive possession and enjoyment. On the contrary, the defendant had
filed the document to show that the same is in joint possession of Kutty
Gounder and his brothers and it is in this circumstance, the Courts below
have dismissed the suit filed by the plaintiff. Hence, I do not find any
reason to interfere with these findings of the Courts below and the appellant
has not made out any question of law much less a substantial question of
law which enable me to interfere with the Second Appeal. The Second
Appeal stands dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
18.07.2021
Index : Yes/No
Speaking Order : Yes / No
vum
To
1. The Subordinate Judge, Madurantakam
2. The District Munsif, Madurantakam
3. The Section Officer,
VR Section, Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
S.A.No.593 of 2021 &
CMP No.12542 of 2021
P.T. ASHA, J,
vum
S.A.No.593 of 2021
and CMP No.12542 of 2021
19.08.2021
https://www.mhc.tn.gov.in/judis/
