Madras High Court
Chellammal vs S.Arumugam on 16 December, 2021
S.A(MD)No.448 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.448 of 2021
and
C.M.P(MD)No.5936 of 2021
1.Chellammal
2.Perumal ... Appellants/Appellants/Defendants
Vs.
1.S.Arumugam
2.Mariyammal @ Maheswari ... Respondents/Respondents/Plaintiffs
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 26.11.2019 passed
in A.S.No.6 of 2016, on the file of the Subordinate Court, Thoothukudi,
confirming the judgment and decree, dated 05.12.2015 passed in
O.S.No.392 of 2013, on the file of the Additional District Munsif Court,
Thoothukudi.
For Appellants : Mr.S.Muthumalai Raja
For Respondents : Mr.KA.Ramakrishnan
1/16
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S.A(MD)No.448 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.392 of
2013 by the Additional District Munsif Court, Thoothukudi and in
A.S.No.6 of 2016, on the file of the Subordinate Court, Thoothukudi,
are being challenged in the present Second Appeal.
2. The respondents/plaintiffs have instituted a suit in O.S.No.392
of 2013 on the file of the trial Court not to disturb the plaintiffs from
their peaceful possession and enjoyment of the suit schedule second
and third item of the properties by the defendants by granting a decree
of permanent injunction, wherein, the present appellants have been
shown as defendants.
3. The case of the plaintiffs is that originally, the suit schedule
property was purchased by the first plaintiff's grandfather and the
second plaintiff's mother's father-Subbiah Pillai on 23.09.1959 in
Document No.1694 of 1959 and from that day onwards, they were in
peaceful possession and enjoyment of the suit property. The said
Subbiah Pillai had executed a Will on 06.07.1992 and as per the said
Will, the second item of the suit property was devolved upon the first
plaintiff and the third item of the suit property to be held by his
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S.A(MD)No.448 of 2021
daughter-Sankarammal till her life time and after her life time, the
same belongs absolutely to the second plaintiff's daughter, namely
Mariammal @ Maheswari. The said Subbiah Pillai died on 10.05.2003
and the second and third items of the suit properties were in
possession and enjoyment of the plaintiffs, which were marked as
'POMN' and 'NMIL' in the sketch. When the plaintiffs were away from
the Town, the defendants, on 15.07.2013, had tried to trespass into
the second and third item of the suit properties and tired to construct a
building and brought JCB and other construction materials and
immediately, on 19.07.2013, the plaintiffs have approached the
defendants and objected for the said act of the defendants, but there
was no appropriate reply on the part of the defendants. Hence, the
plaintiffs had given a complaint before the Inspector of Police and the
Inspector of Police advised the defendants not to interfere with the
plaintiffs' possession. Inspite of the same, the defendants have
continued in disturbing the plaintiffs peaceful possession and
enjoyment of the same. Hence, the plaintiffs have filed the suit for the
relief stated supra.
4. The defendants filed the written statement, denying all the
averments made in the plaint and submitted that the suit schedule
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S.A(MD)No.448 of 2021
property originally belonged to one Vellaichamy Pillai in New Survey
No.79/12 and after his death, his wife Valliammal on 27.06.1956 had
executed a sale deed in Document No.758 of 1956 to one M.Ponniah
Pillai, who in turn had sold the same to one M.Settaiyam Pillai in
Document No.1957 of 1957, dated 16.12.1957 and the said Valliammal
had no right over the suit property and from the said M.Settaiyam
Pillai, the defendant's wife's grandfather Oorkavala Perumal has
purchased the same by way of a Document No.1939 of 1959 on
26.10.1959 and he was in possession and enjoyment of the same. As
the said Valliammal had already sold her husband's share in favour of
the defendants predecessor in the year 1956, she had got no right over
the suit property. The first plaintiff's father-Subbiah Pillai had
fraudulently obtained a sale deed and registered the same in Document
No.1964 of 1959 and the said Jamin Survey No.501 has been modified
as Re-survey No.79/8 and the defendants predecessor-in-title in
Survey No.79/12 belongs to them as per the four boundaries in the
document. As per the plaintiffs document, they cannot come into the
defendants property within the boundaries stated in the document and
as per Re-Survey No.79/12, Vellaichamy's wife had sold the same to
the predecessor and she has no other land in the said Survey
No.79/12. These documents shown by the defendants are very much
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S.A(MD)No.448 of 2021
earlier documents than that of the plaintiffs and the plaintiffs document
is of the year 1959 in which jamin Survey No.501 in Re-Survey
No.79/8 and in Jamin Survey No.501, patta No.310 stands in the name
of one Ponnammal and Jamin Survey No.501 is the re-Survey No.
79/12 has to be proved by the plaintiffs by correlating the same.
5. It is also further stated in the written statement that as per
the Settlement Survey No.651, joint patta does not show the title of
the first plaintiff's father Valliammal and in reality, the same has been
issued in the name of one Ulagamuthu Pillai, son of Ramasamy Pillai
and Settaiyam Pillai, son of Muthuveera Pillai and as per Patta No.651,
the said land belongs to Survey No.79/12 and from Settaiyam Pillai
only, the defendants grandfather purchased it in the year 1959 and the
plaintiffs have failed to prove their title and further submitted that in
Survey No.79/12 in Settlement Re-survey, only 1 acre 16 cents land
alone was available and how the plaintiffs can claim 1 acre 54 cents
and further, the extent, measurements and other details are erroneous
and further, there was no proof to show that how the said Valliammal
was in possession to execute the sale deed in favour of the plaintiffs
family to an extent of 77 cents was not proved by the plaintiffs and
further submitted that the said document was only a forged document
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S.A(MD)No.448 of 2021
and jamin survey number was not correlated with the re-survey
number. When they have not claimed the relief of declaration, there is
no question of granting permanent injunction and also further
submitted that in the suit schedule property, boundaries were wrongly
mentioned and now only the defendants have got the document which
correlate with old survey numbers and as per the same, the plaint
schedule property does not belong to the plaintiffs, which would prove
the same and for the past 55 years, the defendants are in possession
and enjoyment of the same and the plaintiffs were never in possession
and in Survey No.79/12, there cannot be any sub-division and the first
plaintiff, being an officer in the Commercial Tax Department, had
influenced the revenue officials for getting patta. Further, the
defendants have a legal right over the suit property and the defendants
have also constructed a house 10 years ago in Door No.4/103 E and
put up a compound wall. The second defendant is trying to construct a
house in the property which he is legally entitled to and only to disturb
the said construction, the plaintiffs have filed the suit, which is also
barred by limitation and prayed for dismissal of the same.
6. Before the trial Court, on the side of the plaintiffs, P.W.1 and
P.W.2 were examined and Exs.A1 to A20 were marked. On the side of
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S.A(MD)No.448 of 2021
the defendants, D.W.1 and D.W.2 were examined and Exs.B.1 to B.8
were marked and also Ex.X.1 and Ex.X.2 were marked.
7. 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, has decreed the suit.
8. Aggrieved by the Judgment and decree passed by the trial
Court, the defendants, as appellants, have filed an Appeal Suit in
A.S.No.6 of 2016. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, has dismissed
the appeal and confirmed the Judgment and decree passed by the trial
Court.
9. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the defendants, as appellants.
10. Heard the learned counsel for the appellants and the learned
counsel for the respondents and also perused the records carefully.
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S.A(MD)No.448 of 2021
11. The learned counsel appearing for the appellants/defendants
would submit that the Judgment rendered by the Courts below are
erroneous and without considering the appropriate documents, the trial
Court has allowed the suit, which has to be set aside. The trial Court
has given importance only to the documents filed by the plaintiffs,
when the documents filed by the defendants were not considered and
no appropriate issues were framed. The plaintiffs have sought for only
permanent injunction and not asked for the relief of declaration and the
same should have been considered by the Courts below. When the
defendants were in a position to prove that the plaintiffs did not have
any right, as the said Valliammal had no other lands, the Court has
weighed the documents produced from the Revenue Department, has
erroneously considered and given Judgment in favour of the plaintiffs
which has to be set aside. When the defendants were in a position to
prove that they have traced the title from the year 1956 onwards, but
the plaintiffs have traced it from the year 1959 onwards, the same has
not been taken into account by the Courts below and prayed for
allowing the Second Appeal.
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S.A(MD)No.448 of 2021
12. It is the admitted case of the plaintiffs that originally, the suit
schedule property was purchased by the first plaintiff's grandfather and
the second plaintiff's mother's father-Subbiah Pillai on 23.09.1959 in
Document No.1694 of 1959 and from that day onwards, they were in
peaceful possession and enjoyment of the suit property. The said
Subbiah Pillai had executed a Will on 06.07.1992 and after his death,
as per the Will, the plaintiffs were in possession and enjoyment of the
suit property. Since the defendants were trying to disturb the plaintiffs
peaceful possession and enjoyment of the same, the plaintiffs have
filed the suit for the above stated relief.
13. It is the admitted case of the defendants that originally the
suit property belonged to one Vellaichamy Pillai in New Survey No.
79/12 and after his death, his wife Valliammal on 27.06.1956 had
executed a sale deed to one M.Ponniah Pillai, who in turn had sold the
same to one M.Settaiyam Pillai and from the said M.Settaiyam Pillai,
the defendant's wife's grandfather Oorkavala Perumal has purchased
the same and he was in possession and enjoyment of the same. As the
said Valliammal had already sold her husband's share in favour of the
defendants predecessor in the year 1956, she had got no right over the
suit property. The first plaintiff's father-Subbiah Pillai had fraudulently
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S.A(MD)No.448 of 2021
obtained a sale deed and the said Jamin Survey No.501 has been
modified as Re-survey No.79/8 and the defendants predecessor-in-title
in Survey No.79/12 belongs to them as per the four boundaries in the
document. As per the plaintiffs document, they cannot come into the
defendants property which within the boundaries stated in the
document and as per Re-Survey No.79/12, Vellaichamy's wife had sold
the same to the predecessor and she has no other land in the said
Survey No.79/12.
14. These documents shown by the defendants are very much
earlier documents than to the plaintiffs and the plaintiffs document is of
the year 1959 in which jamin Survey No.501 in Re-Survey No.79/8 and
in Jamin Survey No.501, patta No.310 stands in the name of one
Ponnammal and Jamin Survey No.501 is the re-Survey No.79/12 has to
be proved by the plaintiffs by correlating the same. As per the
Settlement Survey No.651, joint patta does not show the title of the
first plaintiff's father Valliammal and in reality, the same has been
issued in the name of one Ulagamuthu Pillai, son of Ramasamy Pillai
and Settaiyam Pillai, son of Muthuveera Pillai and as per Patta No.651,
the said land belongs to Survey No.79/12 and from Settaiyam Pillai
only, the defendants grandfather purchased it in the year 1959 and the
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S.A(MD)No.448 of 2021
plaintiffs have failed to prove their title and further submitted that in
Survey No.79/12 in Settlement Re-survey, only 1 acre 16 cents land
alone was available and how the plaintiffs can claim 1 acre 54 cents
and further, the extent, measurements and other details are erroneous
and further, there was no proof to show how the said Valliammal was in
possession to execute the sale deed in favour of the plaintiffs family to
an extent of 77 cents was not proved by the plaintiffs and further
submitted that the said document was only a forged document and
jamin survey number was not correlated with the re-survey number.
Further, the defendants have a legal right over the suit property and
the defendants had also constructed a house 10 years ago in Door No.
4/103 E and put up a compound wall. When the second defendant is
trying to construct a house in the property which he is legally entitled
to and only to disturb the said construction, the plaintiffs have filed the
suit, which is also barred by limitation.
15. On a perusal of the materials available on record, it is seen
that Subbiah Pillai had purchased the property on 23.09.1959 and as
per the documents viz., Ex.A.2-Judgment rendered in O.S.No.548 of
1967, dated 23.04.1970, Ex.A.3-Judgment rendered in A.S.No.126 of
1970, dated 01.07.1972, Ex.A.4-Judgment rendered in O.S.No.548 of
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S.A(MD)No.448 of 2021
1967, dated 14.07.1978, Ex.A.5-report filed by the Advocate
Commissioner in O.S.No.548 of 1967, Ex.A.6-Judgment passed in
O.S.No.548 of 1967, after remand, dated 14.08.1981, Ex.A.8-
Judgment in A.S.No.101 of 1982 and Ex.A.9-Judgment in I.A.No.2007
of 1985 and only after considering all these documents, the revenue
officials have granted patta in favour of Subbiah Pillai. Only after that,
on 05.07.2001 the Tahsildar has issued appropriate orders, which was
marked as Ex.A.12 and the Revenue Divisional Officer had also passed
an order, which was marked as Ex.A.13 and only after that, Subbiah
Pillai title had been confirmed and based on the same, as an absolute
owner, he had executed a Will, dated 06.07.1992, which was marked
Ex.A.20 and the Death Certificate of Subbiah Pillai and the daughter's
Death Certificate would prove that the title vests on the plaintiffs were
corolaterally proved.
16. There was a dispute arose between Oorkavalan Perumal and
Subbiah Pillai and it has been made clear that the property belongs to
Subbiah Pillai, as per the Advocate Commissioner's report, which has
been marked as 'GHIL' 38-1/2 cents belonged to Subbiah Pillai has
been declared and the defendants have not proved their case beyond
doubt without any clear cut evidence. The defendants in their evidence
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S.A(MD)No.448 of 2021
has admitted that the document shown as Ex.B.7 and Ex.B.8 (series)
are all situated on the Western side of the suit schedule property and
Ex.B.8 (series) do not belong to the said disputed property and as per
the said admission, the trial Court as well as the first Appellate Court
have come to the conclusion that the suit property belongs to the
plaintiffs and the defendants have failed to prove their title.
17. As I.A.No.2007 of 1985 has been decided based on the
Advocate Commissioner's report and no appeal has been filed against
the said order by the defendants and re-Survey No.79/12 and Jamin
Survey No.501 was not clarified by the defendants and the predecessor
was also not in a position to corellate the same. In the absence of any
clear cut evidence to show that the said land is situated within Survey
No.79/12, the defendants have not proved their right over the property
appropriately and the plaintiffs claim that re-survey number has not
been correlated with jamin survey number was not established by
appropriate document or evidence and also the possession of the
property by the defendants and in the absence of any evidence
produced by the defendants, the plaintiffs case is more strengthened.
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S.A(MD)No.448 of 2021
18.The defendants contention is that the plaintiffs have not
prayed for declaration and the same was clarified by the plaintiffs in
their cross-examination and the same reads as follows:-
"cah;ePjpkd;wk; tHq;fpa 2tJ nky;KiwaPl;oy;
tHf;F brhj;J thjpapd; je;ijf;F ghj;jpag;gl;lJ vd;W
tpsk;g[if vJt[k; bra;atpy;iy vd;why; cah;ePjpkd;w
cj;jutpy; vq;fSf;F rhjfkhfj;jhd; cs;sJ. 3
ePjpkd;wq;fspYk; chpik %yk; vdf;F tHf;F brhj;J
ghj;jpag;gl;lJ vd;W tpsk;g[if ghpfhuk; nfl;Ls;nsdh
vd;why; ehq;fs; midj;J tHf;fpYk;
gpujpthjpfshfj;jhd; ,Uf;fpnwhk;. vjph;ghj;jpaij ve;j
tHf;fpYk; nfl;Ls;nshkh vd;why; vy;yh tHf;fpYk;
vq;fSf;F rhjfkhfj;jhd; jPh;g;g[ te;Js;sJ. ,e;j tHf;fpy;
tHf;F brhj;ijg; bghWj;J tpsk;g[if ghpfhuk; nfl;Ls;nsdh
vd;why; nfl;ftpy;iy. ,e;j tHf;fpy; tpsk;g[if nfl;lhy;
vdJ tHf;fpw;F ghjfkhf ,Uf;Fk; vd;W ehd;
nfl;ftpy;iyah vd;why; rhpay;y. tpsk;g[if ghpfhuk;
nfl;fhky; epue;ju cWj;Jf;fl;lis ghpfhuk; kl;Lk;
nfl;Ls;s ,e;j tHf;F epiyf;fj;jf;fjy;y vd;why;
rhpay;y."
19. From the above factual aspects and findings of the earlier
litigation, it has been made clear that the property belonged to the
plaintiffs. That being the case, the plaintiffs have proved their case
beyond doubt. As already stated, only on the basis of the facts, the
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S.A(MD)No.448 of 2021
trial Court as well as the first Appellate Court have decided the title in
favour of the plaintiffs predecessor, this Court is also inclined to accept
the said findings of the trial Court as well as the first Appellate Court
and inclined to confirm the same. As already the Courts below have
given the relief of title, there need not be any relief for declaration.
20. For the reasons aforesaid, this Court is of the considered
view that no questions of law much less substantial questions of law
has been made out by the appellants/defendants to interfere with the
well considered judgments and decrees rendered by the Courts below
and accordingly, the Second Appeal fails and the same stands
dismissed. No costs. Consequently, connected Miscellaneous Petition is
closed.
16.12.2021
Index : Yes/No
Internet : Yes/No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized 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.
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S.A(MD)No.448 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
To
1.The Subordinate Court,
Thoothukudi.
2.The Additional District Munsif Court,
Thoothukudi.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.448 of 2021
16.12.2021
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