Madras High Court
C.Manoharan vs Usha Thanumoorthy on 1 February, 2021
S.A.(MD).No.387 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 16.02.2022
JUDGMENT PRONOUNDED ON : 07.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.(MD).No.387 of 2021
and CMP(MD).No.5055 of 2021
C.Manoharan ...Appellant/Appellant
/Plaintiff
Vs
Ramesh Kumar (died)
1.Usha Thanumoorthy
2.Thanumoorthy ....Respondents 1 & 2
/Respondents 2 & 3
/Defendants 2 & 3
3.Bindhu
4.Vivek
5.Swathika .../Respondents 3 to 5
/Respondents 4 to 6/Nil
PRAYER : Second Appeal is filed under Section 100 of
C.P.C, to set aside the judgment and decree passed by
the Subordinate Court, Eranial in A.S.No.2 of 2018
dated 01.02.2021 upheld by the judgment and decree
1/16
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
passed by the Additional District Munsif Court, Eranial
in O.S.No.54 of 2012 dated 16.12.2016 and allow this
second appeal.
For Appellant : Mr.N.Tamilmani
For R1 to R3 : Mr.M.P.Senthil
JUDGMENT
The plaintiff is the appellant.
2.The plaintiff had filed O.S.No.54 of 2012 on
the file of the Additional District Munsif Court,
Eranial for the relief of declaration of title and
possession over the plaint first item and for
declaration of possession and enjoyment over the second
item of the suit schedule property. The plaintiff had
further prayed for a permanent injunction restraining
the defendants from trespassing into the suit property.
The suit was dismissed by the trial Court. The
plaintiff had filed A.S.No.2 of 2018 before the
Subordinate Court, Eranial. The learned Subordinate
Judge was pleased to dismiss the appeal. As against the
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
concurrent findings, the present second appeal has been
filed.
3.The plaintiff has contended that the suit
schedule property originally belonged to one Kutty,
W/o. Kumara Panicker. The plaintiff had further
contended that the said Kutty gifted the said property
in favour of her four sons namely Subbian Panicker,
Pappu Panicker, Krishnan Panicker and Chidambaram
Panicker. The said donees entered into a partition deed
under Exhibit A2 on 10.06.1958. In the said partition
deed, the suit survey number having an extent of four
cents was allotted to one of the sons of Pappu Panicker
namely Sukumaran Panicker. Though it was mentioned as
four cents in the said document, as per lie, it was 4 ½
cents.
4.The plaintiff had further contended that the
wife of Pappu Panicker and her sons entered into
another partition deed on 23.05.1963 under Exhibit A3 ,
in which, several items were allotted in schedule
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
A to D. According to the plaintiff, 'C' schedule
property was allotted to one Ayyakutty Panicker having
an extent of 1.155 cents. 'D' schedule property was
allotted to one Vallivelu Panicker having an extent of
1.856 cents. The contention of the plaintiff is that
even though four cents was stated in the document, in
actuality it was 5.525 cents.
5.The plaintiff had further contended that the
said Ayyakutty Panicker had executed a registered sale
deed under Exhibit A4 on 18.01.2007 for 1.555 cents in
favour of one Karthikeyan. Thereafter, on 13.02.1999
one Padmakumar and Karthikeyan jointy executed a sale
deed in favour of the plaintiff for an extent of 2.251
cents. The plaintiff had further contended that the
allottee of 'D' schedule property namely Vallivelu has
executed a sale deed under Exhibit A5 in favour of one
Gurunatham for an extent of 1.856 cents on 14.09.2009.
The said Gurunatham has executed a sale deed for an
extent of 1.856 cents in favour of the plaintiff under
Exhibit A6 on 07.09.2011. According to the plaintiff,
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
the defendants have no right or possession over the
suit schedule property, but they are attempting to
disturb him. Hence, the present suit.
6.The defendants filed a written statement
contending that the plaintiff or his ancestor in title
do not have any right, title or possession over the
suit schedule property. The defendants had further
contended that the suit schedule property originally
belonged to the grandmother of the first defendant
namely Valliamma @ Valliammai. The said Valliamma due
to her friendly relationship with Pappu Panicker, had
permitted him to reside in the suit schedule property
as a permissive occupant. The said Pappu Panicker and
his legal heirs have created these documents as if the
suit schedule properties are their own properties. Any
documents of Pappu Panicker and his legal heirs will
not confer any right upon them. The defendants had
further contended that item No.2 has been acquired by
the Government. Hence, Government is a necessary party.
Even though the Government was impleaded originally,
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
later it was deleted from the array of parties. Hence,
the present suit is bad for non-joinder of necessary
party. The defendants had further contended that as per
Exhibit A25, the suit property stands in the name of
Krishnammal, Radha Kumari @ Radha. Since they have not
been impleaded, the suit is bad for non-joinder of
necessary parties. Hence, he prayed for dismissal of
the suit.
7.The trial Court after considering the oral and
documentary evidence, arrived at a finding that the
document produced on the side of the plaintiff do not
tally with the plaint schedule property. Though in the
registered document certain extent is being mentioned,
on every occasion, the plaintiff claims larger extent
based upon possession. However, the plaintiff has not
been able to prove the same. The trial Court further
found that the Will executed by Somasekharan Panicker
in favour of his sons Padmakumar and Karthikeyan based
upon which the plaintiff has purchased a portion of the
suit schedule property has not been produced by the
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
plaintiff. The trial Court further found that the suit
is bad for non-joinder of necessary party namely
Radhakumari and the Government. The trial Court further
found that as regards second item of the suit property,
the plaintiff has relied upon Exhibits A22 and A23
which are unregistered and unstamped sale deeds. Hence,
these two documents cannot be admitted in evidence.
Based upon the said findings, the trial Court arrived
at a conclusion that the plaintiff has not established
his title over the suit schedule properties and
dismissed the suit.
8.The First Appellate Court independently
considered the oral and documentary evidence on either
side. The First Appellate Court also arrived at a
finding that the alleged Will said to have been
executed by one Somasekharan Panicker in favour of his
sons Padmakumar and Karthikeyan has not been produced.
That apart, as per Exhibit A25, the suit building
stands in the name of Krishnammal, Radhakumari @ Radha
and Ramesh kumar. However, none of the them have been
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
made parties to the suit. Even in the deposition, the
plaintiff has admitted that the second item has been
acquired by the Government. The plaintiff has relied
upon Exhibits A22 and A23 for claiming title over the
second item of the suit schedule property. These two
documents being unstamped and unregistered documents,
would not be relied upon. The First Appellate Court
further found that the suit schedule property stands in
the name of the defendants whereas the plaintiff though
has produced several documents, none of them relate to
the suit schedule property. Based upon the said
findings, the First Appellate Court concurred with the
conclusion of the trial Court and dismissed the appeal.
As against the concurrent findings, the present second
appeal has been filed.
9.The learned counsel for the appellant
contended that the Courts below have not properly
appreciated the oral and documentary evidence produced
by the plaintiff. The learned counsel had further
contended that the defendants have admitted in their
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
written statement about the possession of the plaintiff
and hence, he would be entitled to a decree for
permanent injunction. The plaintiff has established the
lie and location of the suit schedule property by
producing Exhibits A1 to A6. He had further contended
that due to mistakes that have occurred during the
resurvey proceedings, the plaintiff cannot be non-
suited. He had further contended that the document
right from the year 1958 onwards produced on the side
of the plaintiff, being a registered documents will
prove the title of the plaintiff to both the items of
the suit schedule property. Since Exhibit A25 is a sham
and nominal, parties to the document were not made
parties to the suit. Hence, the Courts below have erred
in holding that the suit is bad for non-joinder of
necessary parties.
10.The learned counsel for the appellant had
further contended that the properties under the
possession of Pappu Panicker and his sons were
erroneously converted into a poromboke property during
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
the re-survey proceedings. Since these properties have
wrongly classified as poromboke properties, Exhibits
A22 and 23 could not be registered. Hence, it could not
be a ground for non-suiting the plaintiff. He had
further contended that the defendants have not produced
any acceptable document to prove their title. According
to the learned counsel for the appellant, a combined
reading of Exhibit B14 with Exhibit A6 will clearly
prove the boundaries of the suit schedule property.
When the defendants admitted the possession of Pappu
Panicker and his legal heirs, the question of
discrepancies in the boundaries would not arise and the
plaintiff would be entitled to a decree as prayed for.
He further contended that mere mutation of revenue
records in the name of the defendants would not confer
any title upon them, when the plaintiff has produced a
registered document in his favour.
11.Per contra, the learned counsel for the
respondents had contended that the plaintiff has come
out with a case of declaration of title and permanent
injunction and hence, the entire burden is upon the
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
plaintiff to establish his title and possession over
the suit schedule property. But in the present case,
none of the documents produced by the plaintiff tally
with the suit schedule property. Even though the
plaintiff claims that four cents was dealt with under
Exhibits A2 and A3, he claims 4 ½ cents under Exhibit
A2. The plaintiff further claims that though lesser
extent was mentioned under Exhibit A3, a larger was
dealt with. However, there are no revenue records or
any other proof for having dealt with a larger extent
than what was mentioned in the registered document. The
learned counsel had further contended that admittedly
the suit schedule property belongs to one Valliammal.
She had permitted Pappu Panicker and his sons in
possession of the suit schedule property. Being a
permissive occupant, the plaintiff would not be
entitled to create these document and claim title based
upon the said document. The Courts below have rightly
dismissed the suit with a concurrent finding. Since no
question of law is raised, the second appeal may not be
admitted.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
12.I have considered the submissions made on
either side.
13.The plaintiff has claimed title to the suit
schedule property on the basis of Exhibits A1 to A6
registered documents. According to the plaintiff, the
suit schedule first item was allotted to one Sukumaran
Panicker, son of Pappu Panicker having an extent of
four cents. Though document mentioned about four cents,
according to the plaintiff in actuality 4 ½ cents has
been dealt with under the said document. However, there
is no oral or documentary evidence on the side of the
plaintiff to establish that under Exhibit A2, a larger
extent was dealt with than what was mentioned in the
said document. The wife of Pappu Panicker and her sons
have entered into a registered partition under Exhibit
A2 in the year 1963. Even in the said document, the
total extent that has been dealt with is just four
cents. However, according to the plaintiff again what
was dealt with is 5.5258 cents and not 4 cents. On
every occasion, when there a partition in the family
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
of Pappu Panicker, it seems the property is getting
enlarged. However, there is no proof for the said
enlarged extent of land having been dealt with under
the document.
14.The plaintiff had further contended that one
Ayyakutty Panicker has sold 1.555 cents to one
Karthikeyan. Thereafter, the plaintiff has claimed that
on 13.02.1999 one Padmakumar and Karthikeyan have
jointly sold 2.251 cents in favour of the plaintiff
under Exhibit A7. Though the plaintiff refers to a Will
said to have been executed by Somasekharan in favour of
Padmakumar and Karthikeyan, the same has not been
produced. Unless the said Will is produced, the source
of title for Exhibit A7 cannot be proved. Under
Exhibits A5 and A6, the plaintiff is said to have
purchased 1.856 cents of land from one Vallivelu
Panicker based upon Exhibit A3 partition deed. It is
the specific case of the defendants that Pappu Panicker
does not have any title over the property. He is only a
permissive occupant in the suit house. Except Exhibit
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
A2 and A3 partition deeds between the family members,
there is no source of title for the plaintiff. On the
other hand, the defendants have produced Exhibits B2 to
B6 to establish their title over the suit schedule
property.
15.The plaintiff has specifically relied between
Exhibits A22 and A23 to claim title over the second
item of the suit schedule property. Admittedly, these
two documents are unstamped and unregistered documents.
They are inadmissible in evidence. Based upon the said
documents, the plaintiff cannot claim title to the
second item. Originally, the Government was impleaded
as one of the parties, later for the reasons best known
to the plaintiff, the Government has been deleted from
the array of parties. Hence, the findings of the Courts
below that the suit is bad for non-joinder of necessary
party has to be sustained.
16.In view of the above said discussion, I find
that the Courts below have properly appreciated the
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
oral and documentary evidence on either side and has
arrived at a finding that the plaintiff has not
established his title over the suit schedule property.
I do not find any question of law much less a
substantial question of law that arises for
consideration in the present Second Appeal. The
judgment and decree of the Courts below are confirmed.
The Second Appeal stands dismissed at the admission
stage itself. No costs. Consequently, connected
miscellaneous petition is closed.
07.06.2022
Index : Yes / No
Internet : Yes / No
msa
To
1.The Subordinate Judge
Eranial
2.The Additional District Munsif
Eranial
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.387 of 2021
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.(MD).No.387 of 2021
and CMP(MD).No.5055 of 2021
07.06.2022
https://www.mhc.tn.gov.in/judis
