S.Karmegam (Died) vs Tmt. Parvathi
2021 Latest Caselaw 2410 Mad

                                                                                           S.A.No.895 of 1999



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 03.02.2021

                                                      CORAM:

                          THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                                S.A.No.895 of 1999
                                            and C.M.P.No.15075 of 2003

                 1. S.Karmegam (Died)                              ... Appellant / 1st defendant
                 2. K.Deivanayagam
                 3. K.Manivel
                 4. S.K.Sankarapandian
                 5. K.Elangovan
                 6. K.Nallathambi
                 7. K.Anbarasi                                     ... Appellants 2 to 7
                 (Appellants 2 to 7 are brought on
                 records as legal heirs of the deceased
                 first appellant)
                                                          Vs.

                 1. Tmt. Parvathi
                 2. P.Murugan
                 3. P.Umarani
                 4. P.Jeyachandran
                 5. A.Kalimuthu                                    ... Respondents/
                                                                        Plaintiffs 2 to 5 and 2nd
                                                                          defendant

                 PRAYER: Second Appeal filed under Section 100 of C.P.C. against the Judgment
                 and Decree dated 06.04.1998 made in A.S.No.88 of 1996 on the file of the Sub
                 Court, Palani, confirming the Judgment and Decree dated 08.08.1995 made in
                 O.S.No.76 of 1987 on the file of the District Munsif Court, Palani.


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                                                                                       S.A.No.895 of 1999




                                     For Appellants       : Mr.R.Sundar Srinivasan

                                     For Respondents : Mr.S.Anand Chandrasekar
                                                       for M/s.Sarvabhauman Associates
                                                       for R1 to R4
                                                       Mr.M.P.Senthil for R5


                                                      JUDGMENT

Aggrieved over the concurrent findings of the Courts below in

declaring the title of the plaintiff in respect of Survey No.752, the present appeal

came to be filed.

2. For the sake of convenience, the parties are referred to herein, as

per their rank before the Trial Court.

3. The brief facts, leading to the filing of this Second Appeal, are as

follows:-

(i) The plaintiff's ancestor Kandasamy Gounder owned the properties

in Survey No.751, 752 and 753, which are more fully shown in the plan attached

to the plaint. After his death, his only son Mummoorthy Gounder inherited the

properties and he was in enjoyment of the properties. The said Mummoorthy

Gounder had sold the property in favour of his brother-in-law Muthukaruppa

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Gounder on 09.01.1983. The said Muthukaruppa Gounder settled the property in

favour of his sister Ponnammal and her daughter Palaniammal on 18.12.1994.

From the date of settlement, Ponnammal and her daughter Palaniammal were in

enjoyment of the property. The said Ponnammal had one son Kandasamy and the

plaintiff is the son of the said Kandasamy. After the death of Kandasamy,

Palaniammal is in enjoyment of the property. The said Palaniammal executed a

settlement deed in respect of the properties in Survey Nos.751 and 752 in favour

of the first plaintiff. Thereafter, the first plaintiff sold the property in Survey No.

751 to one Kalimuthu, namely, the second defendant and the first plaintiff is in

enjoyment of the property in S.No.753. The first defendant is residing an extent of

646 sq. ft. in Survey No.750 in northern side of the suit property. In the title deed

of the first defendant, the southern boundaries show that the properties in Survey

Nos.751, 752 and 753 belonged to Mummoorty Gounder. The first defendant,

claiming right over the property in Survey No.752, interfered with the peaceful

possession of the suit property. Hence, the suit.

(ii) The first defendant admitted that originally, the suit property is

owned by Kasi Gounder. The said Kasi Gounder obtained a loan from Subramania

Chettiar. The said Subramania Chettiar filed a suit in O.S.No.37 of 1907 and the

property of Kasi Gounder was brought for sale in the above suit and the property

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has been purchased by Subramania Chettiar in court auction under Ex.B2.

Thereafter, the said Subramania Chettiar sold the property to one Kalimuthu

Gounder under Ex.B4. The said Kalimuthu Gounder enjoyed the property and he

sold the property to one Subbiah Gounder under Ex.B5 and the said Subbiah

Gounder settled the property in favour of his wife Palaniammal under Ex.B6 and

the said Palaniammal was in enjoyment of the property and the first defendant

purchased the property, namely, Survey No.750, from the legal heirs of

Palaniammal and from the date of purchase, the first defendant is in enjoyment of

the property under Exs.A7 and B7. Besides, he also perfected the title to the

property.

(iii) Disputing the claim of the plaintiff, the second defendant filed a

statement to the effect that there is a pathway in Survey No.752. The plaintiff is

entitled to declaration other than the pathway situated in Survey No.752.

(iv) Based on the above pleadings, the trial Court has framed four

issues. On the side of the plaintiffs, 3rd plaintiff examined himself as P.W.1 and

Exs.A1 to A25 were marked and on the side of the defendants, D.W.1 to D.W.3

were examined and Exs.B1 to B12 were marked and Exs.C1 and C2 were marked.

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(v) Based on the evidence and materials, the trial Court declared the

property in favour of the plaintiffs except the eastern pathway leading to the

principal lane.

(vi) The first Appellate Court concurred with the findings of the trial

Court, however, restricted the pathway to 4 feet. Aggrieved against the same, the

present Second Appeal is filed.

4. In the Second appeal, application in M.P.(MD)No.1 of 2013 has

been filed for production of additional documents, namely, Othi Deeds executed

by the predecessor-in-title of the plaintiff on 09.01.1933. In the said application, it

is stated that the appellant came to the knowledge of these documents recently

and the above documents are necessary in this matter. The respondents have not

disputed about those documents. The learned counsel appearing on either side

fairly submitted that since the documents are registered documents, the same could

be admitted in evidence and no oral evidence is required in this matter. The said

submission is recorded.

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5. Though the reception of additional documents are not automatic, at

the same time, the documents, which are relevant, enable the Court to arrive just

conclusion for taking any decision to the fact in issue. The Court can receive

those documents, though the petitioner has not strictly made out the ingredients

under Section 41 Rule 27 of C.P.C. As both sides have no objection to receive the

documents, which are of the year 1933 and they relate to the suit property, this

Court is of the view that the documents could be received as additional documents

on the side of the defendants and marked as Exs.B13 and B14. Accordingly,

M.P.(MD)No.1 of 2013 is ordered.

6. Heard both sides.

7. The learned counsel for the appellants submitted that Ex.A4 itself

clearly shows that the suit property is a common pathway exclusively used by the

defendants. Besides the documents in the year 1933 now filed also show that

Survey No.752 is shown as the common pathway. Further, it is contended that

under Exs.A7 and B7, show that Survey No.752 described as property of the first

defendant. Hence, it is contended that the first defendant alone has right over the

property. The Courts below have not appreciated the documents property.

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8. The learned counsel for the plaintiffs/respondents submitted that

both the Courts below have appreciated the entire documents and found that the

suit property, which is situated in Survey No.752 and shown in the plaint plan,

belongs to the plaintiffs. The documents filed by both sides clearly show that the

pathway right is given only in eastern side of the property. The Courts below have

taken note of the same and granted declaration in respect of other areas.

Therefore, the Judgment of the Courts below does not warrant any interference.

9. While admitting the second appeal, the following substantial

questions of law framed.

(i) Whether the finding rendered by the Courts below that the

appellant has not perfected his title by adverse possession is supported by

evidence on record?

10. Further, this Court also framed the following additional

substantial questions of law.

(i) When there is no dispute to Ex.B4, the title deed in favour of

appellant's predecessor in title, whether the non-consideration of the recitals

therein conveying T.S.No.752 namely the suit property to Kalimuthu Gounder is

legally sustainable and not amounting to non-consideration of material document?

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(ii) When reliance placed on Ex.A5, which is contrary to recitals in

Ex.A2 to Ex.A4 and Ex.A7 which had been cancelled by Ex.B9 is proper and

legally sustainable?

(iii) When the plaintiff did not let in any evidence both oral and

documentary to prove his entitlement to T.S.No.752, namely, the suit property

warranting and justifying grant of declaration of title, whether grant of declaration

of title on the ground that the appellant has not proved his exclusive title is legally

sustainable and not amounting to placing burden of proof on the defendants?

11. The second defendant purchased the property in Survey No.751,

which is situated in eastern side of Survey No.752. The main dispute is only with

regard to Survey No.752, which is shown in the plaint plan and also marked as

Ex.A1. The parties are not in dispute as to their enjoyments and title in respect of

other areas. The first defendant owned the property in Survey No.750, more fully

shown in Ex.A1. Similarly, the plaintiff is also in possession and enjoyment of

Survey No.753, which is in western side of Survey No.752. This aspect was not

disputed between the parties. The lie and location of the property as per Ex.A1 is

also not disputed by the parties. The disputed area, namely, Survey No.752, is

situated in between Survey Nos.751 and 753 and the southern side of the property

is the municipal lane and it is also not disputed by both sides.

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12. The main contention of the plaintiffs that T.S.No.752 absolutely

belonged to them. Whereas the defendants also set up their title to the above

property, namely, Survey No.752 based on Ex.A7, which is equivalent to Ex.B7.

The suit has been laid for declaration of title. Though several documents have

been filed, a careful perusal of Ex.A4 shows that item Nos.1 and 2, i.e. survey

Nos.751 and 753, originally belonged to the plaintiffs and item No.1, i.e. Survey

No.751, was sold to the second defendant and Survey No.752 is situated in

between two survey numbers. Especially, Ex.A4 is very clear that the property

situated in between Survey Nos.751 and 753 is shown as south-north common

pathway. Apart from, the draining system is also shown as common pathway. It is

the document of settlement executed by the predecessor in title in the year 1904,

wherein, though the survey number was not mentioned in the schedule, the parties

have not disputed the lie and location of the property as shown in Ex.A1-Sketch,

i.e. item Nos.1 and 2, i.e. T.S.Nos.751 and 753, are dealt with under these

documents. The properties lie in between those two properties shown as the

common pathway used by one Kasi Gounder. Apart from this, Exs.B13 and B14

are also very relevant to decide the fact in issue in this case. Exs.B13 and B14 are

mortgage deeds executed by Ponnammal in favour of one Patchiammal and

Pappammal, which also show that Survey No.752 is the common pathway. P.W.1

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in his evidence has also admitted the existence of pathway in Survey No.752,

however, restricted the width of the pathway to four feet in the eastern side. From

the admission of P.W.1 in his evidence coupled with Ex.A4 and Ex.B13 and

Ex.B14, it is clear that from the very inception, survey No.752 was treated as a

common property. Originally, the entire block, namely, Survey No.751 and 753

owned by the plaintiff's predecessor in title and Survey No.751 was purchased by

the second defendant on the eastern side. The first defendant predecessor-in-title

has purchased the property under Ex.B7 equivalent to Ex.A7. The learned counsel

for the first defendant has given much emphasis that under Ex.A7-sale deed,

Survey No.752 was also sold in favour of the first defendant and it is also included

in the Court Auction sale. Therefore, the first defendant is entitled to the above

property.

13. It is to be noted that court auction and sale deeds are subsequent

to the original title deeds. In the original title deeds, the property has been dealt as

the common property and mere inclusion of T.S.No.752 as one of the properties in

the Court auction, this Court is of the view that such inclusion alone will not

convey any title to the first defendant. Having regard to the nature of the property,

it is admitted by both sides that the first defendant's house is situated in the

northern side of Survey No.752 and the first defendant has to use the property as

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an access to reach his property. Similarly, the plaintiffs and the second defendant

also can have an access to their properties, namely, Survey No.751 and 753.

14. Taking note of the above documents and lie of the property,

which is not disputed by both sides, this Court holds that both the Courts below

have not considered the documentary evidence properly. Accordingly, the Courts

below, granting declaration in favour of the plaintiffs in respect of the entire

Survey No.752 except a small piece of land as a pathway, are not in proper

appreciation and therefore, the finding of the Courts below are certainly nothing

but perverse. When the documentary evidence has not been properly considered

by the Courts below, the findings of the Court below can very well be interfered in

the second appeal. In such view of the matter, this Court, taking note of Exs.A4,

A13 and A14, holds that Survey No.752 is only common to all land owners,

namely, the plaintiff and the defendants 1 and 2 and all of them have access

through Survey No.752.

15. Considering the nature of location and lie of the property and

none of them have any right to make additional construction and improvement of

the property. It should be kept only as a common property for all three for their

ingress and egress to the respective portions. Accordingly, the substantial

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questions of law are answered.

16. In the result, the Second Appeal is allowed, by setting aside the

Judgment and Decree of the Courts below. No costs. Consequently, connected

miscellaneous petition is closed.

03.02.2021 Index : Yes/No Internet : Yes/No ogy

To

1. The Sub Court, Palani.

2. The District Munsif Court, Palani.

3. The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

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N.SATHISH KUMAR, J.

ogy

S.A.No.895 of 1999

03.02.2021

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