Madras High Court
A.Sundararajan vs P.Ramasamy on 24 August, 2021
S.A.No.936 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 24.08.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.936 of 2019
1.A.Sundararajan
2.S.Rajamani
3.S.Prakash
4.S.Vanithamani ...Appellants
Vs.
P.Ramasamy ...Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, against the judgment and decree dated 05.04.2019
made in A.S.No.93 of 2017 on the file of the Principal Sub Court,
Namakkal confirming the judgment and decree dated 27.07.2017 made
in O.S.No.420 of 201 on the file of the Additional District Munsif
Court, Namakkal.
For Appellants : Ms.D.Sathya
For Respondent : Mr.T.Dhanya Kumar
1/10
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S.A.No.936 of 2019
JUDGMENT
(This case has been heard through Video Conferencing)
The appellants are the defendants in a suit filed for a declaration that
the suit property (suit lane) absolutely belongs to the plaintiff and for a
consequential injunction restraining the defendants and their men, agents
from disturbing the plaintiff's peaceful possession and enjoyment over the
said lane.
2.For ease of understanding, the parties are referred to in the same
litigative status as before the Trial Court.
3.The plaintiff had filed a suit O.S.No.420 of 2013 on the file of
the learned Additional District Munsif, Namakkal for the relief stated
supra.
4.It was the case of the plaintiff that he had purchased a suit
property as a vacant site from one Sellammal and her sisters under a
registered Sale Deed dated 05.03.2003 and after the purchase had
mutated the revenue records in his name. Thereafter, he had availed a
loan from the Canara Bank had constructed a house in which he is
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S.A.No.936 of 2019
residing along with his family. The first and second defendants who
are the husband and wife are parents of the defendants 3 and 4. On the
Northern side of the suit property, they have put up asbestos roof
building. In the said building, the defendants are operating power
looms. This property was also a vacant site when the plaintiff had
purchased his property. The defendants have put up a construction in
the year 2009 and have been doing business since then. On the South
and West of the suit property, there exist Panchayat streets. The
plaintiff has an exclusive lane in the Northern portion of the suit
property which has been described as the suit property. The plaintiff
would submit that in the recent local body elections, the plaintiff and
the first defendant were supporting rival candidates which resulted in a
strained relationship between the parties. Owing to this, the defendants
entered into the suit land and also started preventing the plaintiff from
accessing the same. The plaintiff had managed to prevent the attempt
of defendants to enter into the lane with the help of his friends and
well-wishers. However, they have left with threat thereby constrained
the plaintiff to approach the Court.
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S.A.No.936 of 2019
5.The first defendant had filed written statement which was
nothing but a denial of the plaint averments. The defendants had not
come forward with any concrete defence.
6.The learned Additional District Munsif, Namakkal had framed
issues and the parties were put on trial. The plaintiff had examined
himself as PW1 and one Sundaram as PW2 and Exs.A1 to A5 were
marked in support of their case. On the side of the defendants, the first
defendant had examined himself as DW1 and one K.Ramasamy as
DW2 besides marking Ex.B1. During the arguments, the defendants
had for the first time set out that the plaintiff's predecessor in title who
had purchased the property under Ex.B1 - Sale Deed dated 28.05.1976
had purchased only an extent of 700 sq.ft. However, while conveying
the property to Plaint under Ex.A1 an excess extent of 262.85 sq.ft had
been conveyed to the plaintiff and it was this access which was shown
as the suit lane. The learned Judge had observed that nowhere in the
written statement had the defendants taken such a defence that the suit
lane belonged to the defendants which they now plead in the
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S.A.No.936 of 2019
arguments. The Court below had considered the boundaries shown in
both the deeds and observed that the boundaries both in Ex.A1 and
Ex.B1 are identical and therefore, the contention of the defendants
cannot be upheld and consequently, decreed the suit as prayed for.
7.Challenging the said Judgment and Decree dated 05.04.2019,
the defendants had filed A.S.No.93 of 2017 on the file of the Principal
Subordinate Judge, Namakkal. The learned Judge confirmed the
findings and the Judgment and Decree of the Trial Court by dismissing
the appeal. It is aggrieved by this Judgment and Decree that the
defendants are before this Court.
8.The Second Appeal has been admitted on the following
Substantial Questions of Law:
“(i)Whether the Courts below were right in applying
the principle of “boundary prevails over extent” more so,
when there is no dispute regarding the extent of property
sold under Ex.A1?”
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S.A.No.936 of 2019
9.Ms.D.Sathya, learned counsel appearing on behalf of the
defendants would primarily rest on their case on the fact that the extent
shown in Ex.A1 differs from the extent shown in Ex.B1 which is the
parent document. She would therefore contend that the excess property
does not belong to the plaintiff and the Courts below have erred in
declaring the plaintiff's title to this excess land as well.
10.Per contra, Mr.T.Dhanya Kumar, learned counsel appearing
on behalf of the plaintiff would highlight the fact that the written
statement filed by the defendants is absolutely silent regarding the
above. Except for denying the averments, the defendants have not
come forward with a concrete defence to the claim of the plaintiff. He
would also point out the observation of the Trial Court regarding the
fact that the defendants in their written statement have not contended
that the suit property belongs to them. He would reiterate the fact that
the boundaries continued to remain the same and therefore, the
contention of the defendants that the suit property does not belong to
the plaintiff cannot be countenanced.
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S.A.No.936 of 2019
11.Heard the learned counsels appearing on either side and
perused the records.
12.The vendor of the plaintiff had purchased a property in the
year 1976 and had conveyed the same to the plaintiff in the year 2003.
No doubt under Ex.B1 the plaintiff's vendor had purchased an extent of
700 sq.ft. However, when the property had been sold to the plaintiff
the extent that conveyed was the extent of 952.60 sq.ft. The plaintiff
has occupied this property and had also put up a construction in which
the plaintiff and his family are residing. The plaintiff has also had
revenue records mutated in his name at a larger extent of the lands
including the suit property. The defendants have purchased their
property subsequently in the year 2009. Therefore, from the year 2003
till the filing of the suit and even at the time of the purchase by the
defendant in the year 2009, there has been absolutely no dispute with
reference to the excess extent in the occupation of the plaintiff. Even
in the instant suit, the defendants have not taken out a plea that the suit
property is a part of the defendants property. The Courts below have
therefore rightly come to the conclusion that the plaintiff has proved
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S.A.No.936 of 2019
his title possession and enjoyment to the suit property. The Appellate
Court has also observed the measurement given under Ex.A1-Sale
Deed are based on the measurement given in Ex.A3-Patta. Therefore,
the defendants without claiming any right over the suit property in the
written statement cannot seek to develop their case during the evidence
and arguments. Even assuming that the plaintiffs are in occupation and
enjoyment of an excess extent considering the fact that he is in
occupation of the same since 2003 and neither the defendants nor the
predecessor in title had questioned the same, the Judgment and Decree
of the Courts below have to be confirmed. Substantial Question of
Law is answered in favour of the plaintiff/respondent. This is a case
where considering the defence the principal of the boundaries prevail
over the extent would squarely apply.
In fine, the Second Appeal is dismissed. However, there shall be
no order as to costs.
24.08.2021
Index : Yes/No
Internet : Yes/No
Speaking order: Yes/No
pam
https://www.mhc.tn.gov.in/judis/
S.A.No.936 of 2019
To
1.The Principal Sub Court,
Namakkal.
2.The Additional District Munsif Court,
Namakkal.
https://www.mhc.tn.gov.in/judis/
S.A.No.936 of 2019
P.T. ASHA, J,
pam
S.A.No.936 of 2019
24.08.2021
https://www.mhc.tn.gov.in/judis/
