Madras High Court
V. Jeyavelsamy vs V.R.Jeyaramasamy on 7 December, 2021
S.A.(MD) No.770 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 07.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.770 of 2021
V. Jeyavelsamy ..Appellant
vs.
1. V.R.Jeyaramasamy
2. V.R.Ramakrishna Parama
3. V.R.Gopalakrishnan
4. V.R.Ratha Chennammal
5. M.Vijayaragavan ..Respondents
Second Appeal filed under Section 100 of CPC against the judgment
and decree passed by the learned Principal District Judge, Thoothukudi dated
22.10.2019 made in A.S.No.13 of 2019 confirming the judgment and decree
made in O.S. No.23 of 2012 dated 01.10.2018 on the file of the learned
Subordinate Judge, Kovilpatti.
For Appellant : Mr.D.Srinivasaraghavan
JUDGMENT
The present second appeal has been filed against the judgment and
decree passed by the learned Principal District Judge, Thoothukudi dated
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22.10.2019 made in A.S.No.13 of 2019 confirming the judgment and decree
made in O.S. No.23 of 2012 dated 01.10.2018 on the file of the learned
Subordinate Judge, Kovilpatti
2. The case of the plaintiff is that the suit property belongs to one
Velappa Naicker @ Veluchamy Naicker. He has two sons namely
Thiruvenkatapathy Naicker and Vellaichamy Naicker . After the demise of
Velappa Naicker @ Velcuchamy Naicker the property devolved upon his sons
namely Thiruvenkatapathy Naicker and Vellaichamy Naicker.
Thiruvenkatapathy Naicker died without issues. Vellaichamy Naicker is the
only legal heir of the plaintiff herein. The plaintiff and his paternal uncle
Thiruvenkatapathy Naicker had mortgaged the suit property in favour of
Anaimuthu Nadar on 27.07.1971 by a valid registered mortgage deed.
Subsequently Thiruvenkatapathy Naicker died in the year 1977 and the
plaintiff paid the mortgage amount and had redeemed the properties on
19.07.1982. So the entire property belongs to the plaintiff by succession as
well as redemption of the mortgage share of his paternal uncle
Thiruvenkatapathy Naicker. The properties in the schedule are in the
possession and enjoyment of the plaintiff and his predecessors in title for
more than 100 years. The schedule properties are punja lands and are
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cultivated every year. The property tax has been assessed in the name of
the plaintiff and a separate patta pass book has been issued to him by the
revenue department on 17.06.1998. The defendant tried to disturb the
peaceful possession and enjoyment. The defendant and his deceased wife
Thulasimaniammal belong to the plaintiff great grand father Vellaiah Naicker
family which was also proved by the genealogical tree. In the year 1951, the
plaintiff's grandfather Velappa Naicker @ Veluchamy Naicker had orally
gifted the self acquired properties to the defendant. The said properties had
been bought by Velappa Naicker @ Veluchamy Naicker vide a registered sale
deed dated 28.09.1950. The property is in Kumarachithenpatti village limit.
Since the first defendant is also from Kumarchithenpatti the properties were
gifted to him in order to avoid future litigations. The first defendant had sold
the property gifted to him in the year 1992. After selling all the properties
given to him by the plaintiff's grandfather, he is now grabbing the properties
belonging to the plaintiff. The first defendant is a retired army officer and
using the same he managed to include his name of his wife's name in the
patta in the year 1991 regarding the scheduled properties. The plaintiff
strongly objected it and filed an objection petition before the Revenue
Divisional Officer, Kovilpatti for deleting the name of the defendant. The RDO
Kovilpatti in his proceedings A3/7354/91, A3/7535/91 dated 30.11.1993 did
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not delete the name of the defendant but deleted the name of the plaintiff.
Hence the plaintiff had filed a revision before the District Revenue Officer,
Tuticorin. Aggrieved over the order of the Revenue Divisional Officer,
Kovilpatti, the revision petition was taken on file as D2/12168/94 and
D2/12170/94 and enquired the same. After enquiry the DRO was pleased
to order deletion of name of the first defendant from the patta holding that
the patta issued by the settlement officer is final and it can neither be
modified nor cancelled by his proceedings dated 15.09.1995. The first
defendant has filed Writ Petition in W.P.Nos.17495 and 17496 of 1995 and
this Court has rejected the order of the Revenue Divisional Officer, Tuticorin
holding that the title could be decided only by the competent Civil Court.
Against which Writ Appeals have been filed before the High Court, Madras in
W.A. Nos.1537 and 1538 of 2006. During the pendency of these appeals,
the first defendant was trying to register his name and his wife's name in
the patta. In the meantime the first defendant was taking efforts to sell the
schedule properties based upon the illegal patta in his name. Hence the
plaintiff sent a registered legal notice to the defendant on 20.08.2011 and
the first defendant had received the notice on 25.08.2011 but he did not
reply so far. Further he had sent another notice on 24.08.2011 instructing
the first defendant not to disturb the peaceful possession and enjoyment
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and he had received the acknowledgment notice on 29.08.2011, but he had
not replied so far. The first defendant died on 26.08.2012 and wife
Thulasiammal died on 31.12.2002, hence the defendants 2 to 6 who are the
legal heirs of the first defendant was added as necessary parties. Therefore
the plaintiff has filed the suit for declaration that the schedule property
belongs to the plaintiff by virtue of settlement patta issued in the year 1958
by the Assistant Settlement Officer and for a decree of permanent injunction
restraining the defendants 2 to 6 from interfering with the peaceful
possession and enjoyment over the schedule property and not to encumber
the property in any manner. The suit is filed during the pendency of writ
appeals and the same was taken on file by the Trial Court, since they are
over the order of the revenue authority. Hence the plaintiff has come forward
with this suit for declaration and permanent injunction.
3. The second defendant has filed a written statement which was
adopted by the defendants 3 to 6 which is as follows:
(i) Originally the suit properties belongs to Velappa Naicker and the
said Velappa Naicker had two wives namely Iyyammal and Bolammal.
Bolammal died without any issues and the Iyyammal had one daughter
Poochammal. The husband of Poochammal is Akka Naickar who had one son
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Vellaiya Naickar and two daughters. Vellaiya Naicker had one son Velusamy,
who in turn had two sons namely Thiruvenkadapathy and Vellaisamy in
which Thiruvenkadasamy has no issues, which was also admitted. The
plaintiff Jeyavelsamy is the legal heir of Vellaisamy. The two daughters of
Poochammal were given in marriage to one Ramasamy. Akkammal had
three female heirs namely Iyyammal, Poochammal and Lakshmiammal
through Ramasamy. Lakshmiammal had three female heirs namely
Mariammal, Subbammal and Parvathammal and on 14.02.1873 Velappa
Naicker executed a registered gift deed in favour of Vellaiya Naicker,
Akkammal and Lakshmiammal regarding the suit properties. In the gift
deed it has been stated that half of the properties belongs to Vellaiya
Naickar and the remaining half share belongs to Akkammal and
Lakshmiammal. Vellaisamy, Thiruvenkadapathi and Velusamy had executed
a registered mortgage deed in favour of Krishnasamy Naickar.
(ii) As the mortgage amount was not repaid, the said Krishnasamy
Naickar filed a suit in O.S.No.90 of 1934 before the District Munsif Court,
Kovilpatti and the said suit was dismissed. In the suit it was mentioned that
half share of the properties belonged to Akkammal, and Lakshmiammal
through the gift deed. The legal heirs of Akkammal, Lakshmiammal namely
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Iyyammal, Poochammal, Lakshmiammal, Marimmal, Subbammal,
Parvathammal filed a suit in O.S. No.67 of 1936 before the District Munsif
Court, Kovilpatti against the said Krishnasamy, Vellaisamy,
Thiruvenkadapathy and Velusamy claiming their share and also the suit filed
by Krishnasamy Naicker in O.S No.90 of 1934 is not binding over the
properties belong to the Iyyammal vagaiyara and the same was dismissed.
(iii) Thereafter Iyyammal vagaiyara filed an appeal in A.S. No.67 of
1937 before the Sub Court, Kovilpatti and the same was allowed. Thereafter
the mortgagor Krishnasamy alone filed a second appeal in S.A. No.1083 of
1938 before this Court and this Court by an order dated 31.07.1941 made
in clear that the mortgage property belongs to Krishnasamy Naicker and the
remaining property shown in the gift deed(Suit property) belongs to
Iyyammal Vagaiyara. From which it is clear that the predecessors of the
plaintiff has no title or interest in the suit property. The suit property
belonged to Iyyammal vagaiyara and they enjoyed the property. Thereafter
out of six persons of the Iyyammal vagaiyara Iyyammal, Poochammal,
Lakshmiammal, Parvathammal died without any issues. The first defendant
is the legal heir of Mariammal who is one among the six persons.
Chennammal is the legalheir of Subbammal and Chennammal's daughter is
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Thulasimoni Ammal, who is the wife of the first defendant.
(iv) After demise of four persons, out of 6 persons without any legal
heir the remaining persons enjoyed the properties by making arrangements
that the suit properties belongs to the first defendant's mother Marimmal
and the properties situated in S.No.14/7 and 127/6 at Puthur Village which
belongs to the legal heirs of Subbammal namely Chennammal and her
husband Mookka Naickar. After the demise of Mookka Naickar and his wife
Chennammal those two properties devolved on their daughter Thusalimoni
ammal who had enjoyed the same. Since the 1st defendant was working as
Major in Military, the plaintiff's father-in-law R.S. Subba Naickar looked after
the suit properties and the properties belonged to Thulasimoni ammal. At
that time some how patta was changed in the name of R.S. Subba Naicker.
It is further seen that R.S. Subba Naicker wrote letter to the 1st defendant
asking him to send money towards maintenance and agricultural expenses
for the lands. Therefore R.S. Subba Naickar enjoyed the suit properties on
behalf of the first defendant.
(v) The first defendant and his wife were working at several places on
their transfer and the Subbanaicker using his position in the employment
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mutated the patta in the name of his son-in-law/plaintiff herein. Knowing the
same the first defendant gave a petition before the Tahsildhar, Vilathikulam
to include the name of the first defendant and sought for removing the name
of the plaintiff and other wrong pattadaras. On that petition the Tahsildar
enquired the plaintiff and the defendant and passed an order to issue patta
in the name of the plaintiff and the first defendant on 27.06.1991. Since the
first defendant was affected by such order he filed an appeal before the
Revenue Divisional Officer, Kovilpatti. In the said appeal , the Revenue
Divisional Officer, Kovilpatti enquired both the parties and found that the
suit properties belongs to the first defendant and he ordered to mutate the
patta in the name of the first defendant and passed two orders on
31.11.1993. Against the said order, the plaintiff filed a revision petition
before the District Revenue Officer, Thoothukudi and the same was set
aside. Therefore the defendant and his wife filed three Writ petitions in
W.P.Nos.17495 of 1995, 17496 of 1995 and 17497 of 1995 with regard to
the Puthur Village, S.No.14/1, 127/6 against the order of District Revenue
Officer. When the above three petitions came up for enquiry, the first
defendant's wife died and the legal heirs of the first defendant were
impleaded in that writ petition on 13.08.2003 and the orders of the District
Revenue Officer, Thoothukudi was set aside and the order of the Sub
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Collector, Kovilpatti was confirmed. Thereafter against the same, the plaintiff
filed writ appeals in W.A.No.1537 of 2006 to 1539 of 2006 before the Madras
High Court and after enquiry the appeals were dismissed on 09.01.2012.
(vi) After dismissal of appeals, n respect of suit properties patta was
registered in the name of the first defendant and after his demise patta was
issued in the name of his legal heirs and the defendants 2 to 6 are enjoying
the property absolutely by paying necessary kist. Though the patta stands
in the name of plaintiff wither the settlement period or land ownership
development scheme period, they were not legally valid. The plaintiff and
his uncle mortgaged the suit properties with Aanimuthu Nadar and that
mortgage is not legally valid and the same was not binding over the
defendants. The plaintiff's uncle Thiruvenkatapathi Naickar has no right or
enjoyment in the suit properties. It is seen that on 23.05.1975 he executed
a registered release deed but he has no right to mortgage the property and
to redeem the same. Since the plaintiff's father-in-law R.S.Subbanaickar
looked after the suit properties for the properties belonged to the first
defendant wife, patta was fraudulently obtained in the name of the plaintiff
regarding the suit properties. The said Gothandaramasamy claiming right
over the property filed a suit in O.S. No.22 of 2012 regarding the property
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which belongs to the first defendant is without any title. The relief claimed by
the plaintiff could not be granted, since the suit properties belongs to the
defendants and their predecessors for a long time, therefore the suit filed by
the plaintiff for permanent injunction is not legally valid and to be dismissed
with costs.
4. During the trial, the plaintiff himself was examined as PW1 and 16
documents were marked as Exs.A1 to A16 on the side of the plaintiff. The
defendant examined himself as DW1 and 22 documents were marked as
Exs. B.1 to B.22 on the side of the defendant.
5. On the basis of the rival pleadings made on either side, the trial
Court, after framing necessary issues and after evaluating both the oral and
documentary evidence, had dismissed the suit.
6. Aggrieved by the Judgment and Decree passed by the trial Court,
the plaintiff, as appellant, had filed an Appeal Suit in A.S. No.13 of 2021, on
the file of the learned Principal District Judge, Thoothukudi. The first
appellate Court, after hearing both sides and upon reappraising the evidence
available on record, had dismissed the appeal and thereby, confirmed the
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Judgment and Decree passed by the trial Court.
7. Challenging the said concurrent Judgments and Decrees passed by
the Courts below, the present Second Appeal has been preferred at the
instance of the plaintiff, as appellant.
8. The learned counsel appearing for the appellant / plaintiff would
submit that a mere reading of Ex.B21, Release Deed, executed by
Thiruvenkatapathy would show that there are other properties owned by
Thiruvenkatapathy and the appellant's father. Therefore, non-consideration
of the above aspect by the Courts below is not at all sustainable and the
same needs interference of this Court. The Court below ought to have
considered the documents independently without getting influenced with the
order passed in the Writ Petitions and Writ Appeals, which are marked as
Ex.B9 and Ex.B10, as those orders are relating to the order passed by the
Revenue Authorities. The courts failed to consider Ex.A1 to Ex.A5 documents
in its proper perspective, which are vital documents to prove the plaintiff's
right over the suit property. Failure to consider the said documents resulted
in causing injustice to the appellant, which need interference of this Court
under Section 100 of Civil Procedure Code. The Courts below failed to give
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any findings with regard to the contention of the appellant that Krishnasamy
Naicker did not take possession of the property under Ex.B2 to Ex.B4. In
the absence of any proof for taking possession of the suit property from the
plaintiff, the Courts below are not justified in non suiting the plaintiff from
seeking the relief as sought. The Courts below failed to give their finding on
the aspect of independent holding of properties by the plaintiff's father and
his uncle Thiruvenkatapathy other than those property covered under Ex.B1
document. The non-consideration of the above aspect misled both the
Courts below to reach a wrong conclusion and such a wrong conclusion of
the Courts resulted in miscarriage of justice apart from causing great
prejudice to the plaintiff and hence, the Judgment and Decree of the Courts
below are liable to be set aside.
9. The learned counsel appearing for the respondents/ defendants
would vehemently oppose the Second Appeal by contending that the well
considered Judgments of the Courts below need not be interfered with, as
there is no question of law involved in this Second Appeal and prayed for
dismissal of the Second Appeal.
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10. This Court paid its anxious consideration to the rival submissions
made and also carefully perused the materials placed on record.
11. The case of the plaintiff is that originally the suit properties
belonged to Velappa Naickar @ Veluchamy Naickar and after his demise, his
two sons namely, Thiruvengadapath Naickar and Vellsamy Naicker inherited
the property, The said Thiruvengapathi Naickar has no issues. The plaintiff is
the male heir of Vellsamy Naickar, who is the brother of Thiruvengapathi
Naickar and therefore, after the demise of Thiruvengadapathi Naicker, the
right of entire suit properties belonged to his brother Vellasamy Naicker and
thereafter, the appellant inherited the entire suit properties, as the sole
legal heir of Vellasamy Naicker. On 27.07.1971, the plaintiff and his
paternal uncle Thiruvengadapathi Naickar jointly executed a registered
mortgage deed regarding suit properties, in favour of one Aanimuthu Nadar
through Ex.A1 and after execution of Ex.A.1, the said Thiruvendapathy
Naicker died and therefore, on 19.07.1982, the plaintiff repaid the mortgage
amount and redeemed the suit property and to that extent Ex.A.2
endorsement was made on the back side of 2nd page in Ex.A1 and he alone
enjoying the suit properties.
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12. In the year 1991, the 1st defendant, who was working as Major in
Indian Army, using his influence technically and fraudulently added his wife
Thulasimoni Ammal's name in the patta, through the order of Tahsildhar,,
Vilathikulam. Against which, an appeal filed by this plaintiff was dismissed
and therefore, the plaintiff filed a revision petition before the District
Revenue Officer, Thoothukudi in which DRO, Thoothukudi passed order
Under Ex.A.16. Against the order passed in revision petition, the 1st
respondent and his wife filed a writ petition in W.P.No.17495 and 17496 of
1995, which were allowed, by setting aside the order of DRO, Thoothukudi.
13. The case of the defendants is that the plaintiff's father Vellasamy
Naicker and his brother Thiruvengadapathy jointly executed mortgage deed
in favour of Krishnasamy Naicker, regarding the properties found in gift
deed. Against which, several suits were filed and ended in favour of the said
Krishnasamy Naicker. Thiruvengadapathi and other co-parceners and female
heirs of the father of Vellasamy Naicker viz., Velappa Naicker @ Velusamy
filed a suit against the said Krishnasamy naickar for redeeming their share
and the properties to the share of Thiruvenkadapathy and Vellasamy were
auctioned and therefore, the contention of the plaintiff that he derived the
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property from Thiruvenkadapathy and Vellasamy is not acceptable and
denied as false.
14. On the side of the plaintiff, Ex.A15, Gift Settlement Deed, was
marked and on the side of the defendant the very same Gift Settlement
Deed was marked as Ex.B1. Therefore Ex.A15 and Ex.B1 are one and the
same. There is no dispute about the gift settlement deed. On perusal of
Ex.A5 = Ex.B1, reveal that Velappa Naickar settled his properties in favour of
his son Vellaiya Naicker and his daughter Akkammal and Lakshmiammal,
through which Vellaiya Naickar is entitled to ½ share, Akkammal and
Lakshmiammal jointly entitled to ½ share. Therefore, after the demise of
Vellaiya Naickar his son Velusamy, the son of Velusamy and grandsons of
Vellaiya Naickar, namely, Thiruvengadapathy and Vellaisamy jointly and
fradulently executed a registered mortgage deed in favour of Krishnasamy
naickar by mortgaging their properties and also the properties belonged to
Akkammal and Lakshmiammal.
15. Thereafter, to recovler the money on mortgage, the said
Krishnasamy Naicker filed a suit in O.S. No.90 of 1934 before the District
Munsif Court,Kovilpatti and obtained a decree in his favour. Since the
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proeprties of Akkammal and Lakshmiammal were also included in the O.S
No.90 of 1934, tey filed a suit in A.S.No.67 of 1936 before the District Munsif
Court, Kovilpatti, for partition and separate possession for their undivided
half share allotted to them based on settlement deed dated 14.02.1973 and
the same was dismissed under Ex.B2. However, on appeal in A.S. NO.67 of
1937 filed by the plaintiffs before the Sub Court, Thoothukudi against
Ex.B2/Judgment, the said Akkammal and Lakshiammal obtained preliminary
decree. Aggrieved by the said order the said Krishnasamy Naicker filed a
second appeal before the Hon'ble Madras High Court in SA No.1083 of 1937
under Ex.B4, the same was dismissed by confirming the judgement and
decree passed by the Sub Court, Thoothukudi in A.S.No.67 of 1937 under
Ex.B4. Against which no appeal filed. The claim made by the plaintiff that
the Thiruvenkatapathy and Vellaisamy, who are the grandsons of Vellappa
Naicker, had mortgaged the property to Krishnasamy Naicker fradutendly
has been proved.
16. According to the defendants, the plaintiff clandestinely and by
misrepresentation, taking advantage of the 1st defendant's absence had
manipulated and secured patta in his favour during 1958 survey and
settlement proceedings, aggrieved by the grant of patta in favour of the
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plaintiff , the deceased 1st defendant filed an appeal before the Revenue
Divisional Officer in Appeal No.898 of 1989 in which patta granted to the
plaintiff was cancelled by directing the Tahsildar to issue patta after
conducting due enquiry, who in turn, by proceedings dated 01.07.1991
ordered that the plaintiff as well as the deceased 1 st defendant entitled to
joint patta. Aggrieved over the same, the plaintiff and the 1st defendant
preferred an appeal before the District Revenue Officer, who in turn, passed
an order holding that the deceased 1st defendant alone got absolute title over
the suit property and ordered mutation patta in favour of the 1 st defendant.
Therefore, the plaintiff filed a Revision before the District Revenue Officer.
By proceedings dated 15.05.1995, the District Revenue Officer, reversed the
findings of the Revenue Divisional Officer and directed the land to be
registered in the name of the plaintiff and the same is proved through
Ex.A18 and Ex.B5 to Ex.B8.
17. As against the order of the District Revenue Officer, the the wife of
the deceased 1st defendant filed Writ Petitions before this Court in W.P.No.
17495 to 17497 of 1996 in which this Court held that neither the plaintiff nor
his predecessor in title have produced any documents worth consider to
prove their title and further hold that the pwoer of Revenue Authorities
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under the Act is only for the revenue purpose and cannot decide the title,
which the civil Court alone can do it and thereby set aside the order of the
District Revenue Officer, Kovilpatti and thereby allowed all the writ petitions
under Ex.B9. Assailing the order, the plaintiff filed an appeal in W.A.NOs.
1537 to 1539 of 2006 before this Court and the same were dismissed on
09.01.2012, under Ex.A10 = Ex.B10 holding that the competent civil Court
alone has jurisdiction to decide the title. Admittedly, the disputes between
the parties regarding the suit properties were already decided under Ex.B2,
Ex.B3 and Ex.B4. Therefore, the decision rendered by the comptent civil
Court in Ex.B2 to Ex.B4 is conclusive one, against the plaintiff who cannot
claim any right over the property.
18. It is pertinent to note that Ex.A1 mortgage deed is of the year
1971 and Ex.A2 endorsement made in the back side of the 2nd page of Ex.A1
is of the year 1982. Though the plaintiff pleaded that himself and his
paternal uncle Thiruvengadapathi Naickar jointly executed a registered
mortgage deed regarding the suit propertie in favour of Aanimuthu Nadar
through Ex.A1 and after t he demise of his paternal uncle, the plaintiff
himselfredeemed the mortgage property by paying mortgage money under
Ex.A1, the same was not only produced in the subsequent litigations held
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before the revenue officials, but also no pleaded about that. In the year
1941, this Court rendered the Judgment that the appellant's grandfather's
father Vellaiya Naickar has no right in the suit properties under Ex.B4 and
naturally, I am not in a position to accept the origin of Ex.A1 and Ex.A2.
Therefore, this Court is of the considered view that after Ex.B4, the plaintiff
has fradulently created Ex.A1 and Ex.A2, for the purpose of the case. The
courts below have carefully analyzed all the evidences adduced and exhibits
marked and righly dismissed the suit filed by the plaintiff. Therefore, I have
no reason to interfere in the Judgment and Decree passed by the Courts
below.
19. In fine, this Second Appeal is dismissed, confirming the Judgment
and Decree passed by the learned Principal District Judge, Thoothukudi
made in A.S.No.13 of 2019, confirming the Judgment and Decree in O.S.
No.23 of 2012, on the file of the learned Subordinate Judge, Kovilpatti.
However, there shall be no order as to costs.
07.12.2021
Index: Yes/No.
Internet: Yes/No.
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S.A.(MD) No.770 of 2021
Note: In view of the present lock down owing to COVID 19 pandemic, a web copy
of the order may be utilised for official purposes, but, ensuring that the copy of the
order that is presented is the correct copy, shall be the responsibility of the
Advocate/litigant concerned.
To
1. The Principal District Judge, Thoothukudi
2. The Subordinate Judge, Kovilpatti.
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V. BHAVANI SUBBAROYAN, J.
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S.A.(MD) No.770 of 2021
07.12.2021
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