Madras High Court
V.N.R. Subbiah vs Avudaithai on 25 February, 2021
S.A (MD) No.7 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.02.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A (MD) No.7 of 2015
V.N.R. Subbiah . Appellant / Appellant / defendant
Vs.
R. Kanagaraj(died)
1. Avudaithai
2.K. Rajadurai (died)
(Memo in USR No.402 dated 05.01.2021
is recorded as R2 died and R1 who is already on record
as LR of the deceased R2 vide Court order dated
19.01.2021)
3.K.Gayathri.
4.K. Suganthi : Respondents / Plaintiffs
Prayer: Second Appeal filed under Section 100 CPC against the decree
and Judgment dated 19.02.2014 passed in A.S.No.52 of 2011, on the file
of the Sub Court, Kovilpatti by concurrent Judgment and decree passed in
O.S.No.31 of 2007, dated 08.07.2011, on the file of the District Munsif
Court, Kovilpatti.
1/14
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S.A (MD) No.7 of 2015
For Appellant : Mr. L. Prabahar
For respondents : No appearance
JUDGMENT
The defendant in O.S.No.31 of 2007 is the appellant.
Challenge is to the decree for declaration of title and mandatory injunction
granted by the trial Court and affirmed by the first Appellate Court in
A.S.No. 52 of 2011, on the file of the Sub Court, Kovilpatti.
2. According to the plaintiff, the suit “A” schedule property
belonged to his grand father Kandhasamy Naicker, who had sold the
portion of it to the Venkateshwarapuram Co-operative Society under
Ex.A1, dated 25.08.1952 retaining the remaining land with him. Claiming
that the defendant had encroached upon the street on the western side of
the suit property as well as an extent of 10 Feet over the “A” schedule
property, which was shown as “B” schedule property, the plaintiff had
sought for declaration of title and for consequential permanent injunction
and mandatory injunction directing the defendant to remove the Car shed
that has been put up by the defendant by encroaching upon the street and a
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S.A (MD) No.7 of 2015
portion of the “A” schedule property.
3. Resisting the same, the defendant has contended that the
plaintiff has no title to the suit “A” schedule property. It was also pointed
out that when the father of the plaintiff is alive, the plaintiff who is the
grand son of Kandasamy Naicker is not entitled to the suit property. It
was claimed that there was no street on the Eastern side and the defendant
is entitled to the property, over which he had put up the car shed.
4. At trial, the plaintiff examined himself as PW.1 and three
other witnesses, who are the owners of the property on the north of the
suit property were examined as PW.2 to PW.4. The defendant was
examined as DW.1 and one Gnana Sundaram was examined as DW.2.
While Exs. A1 to A14 were marked on the side of the plaintiff, Exs. B1 to
B3 were marked on the side of the defendant. A Commissioner was
appointed and his report and plan were marked as Exs.C1 and C2.
5. The trial Court, upon considering the evidence on record,
particularly, the recitals in EX.A1 sale deed, concluded that the larger
extent of 23 Gajams East-West and 57 Gajams North – South belonged to
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S.A (MD) No.7 of 2015
the grand father of the plaintiff and he had sold an extent of 7 ½ Gajams
North – South and 5 ½ Gajams East West to the Co-operative Society and
retained the remaining land with him. The trial Court has also relied upon
Exs.A10 to A12 sale deeds in respect of the properties on the North of the
defendant's property, which showed the existence of the road on the
western side of their property and the defendant's property also to conclude
that the defendant had encroached upon the road as well as the portion of
the plaintiff's property, which is the suit “A” schedule property. Upon the
said conclusion, the trial Court had decreed the suit as prayed for.
Aggrieved, the defendant preferred an appeal in A.S.No.52 of 2011, the
appellate Court on reconsideration of the evidence on record, concurred
with the findings of the trial Court and dismissed the appeal. Hence, the
Second Appeal.
6. At the time of admission following substantial questions of
law has been framed:
1. Whether the Ex.A1 marked by the respondents /
respondents / plaintiffs herein, be considered to be a valid
deed for proving the title to them?
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S.A (MD) No.7 of 2015
2. Whether a grand-son, seek the relief of declaration
in his favour in respect of an ancestral property without
impleading his father who is alive at the time of institution of
the suit?
3.Whether, a person, be entitled to the reliefs of
declaration and permanent injunction without producing
any document to prove either his title or possession or
enjoyment?
4.Whether the courts below right in considering a
vacant site as pathway contrary to the revenue records and
FMB Sketch?
5.Whether “ Manaivari thoraya Patta”, a document to
establish the possessory right of a person in Naham lands
against persons who had no valid title over the property
concerned?
6. Whether the relief of declaration, be granted even if
it was not sought, by the plaintiff?
7. Will, possession get converted into title when
neither party is vested with title through valid documents?
8. Whether the relief of mandatory injunction, be
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S.A (MD) No.7 of 2015
sought in respect of an alleged street,, which is not indeed in
existence topographically, without impleading concerned
panchayat board as a party to the suit?
9. Whether the name of the street in a deed prevail
over topographical existence and FMB Sketch?
10. Whether, a conclusion of considering one of the
suit properties as a pathway only on the basis of oral
evidences and recitals found in the documents of the further
witnesses, be arrived at?
7. I have heard Mr. L. Prabhakar, learned counsel appearing
for the appellant.
8. Despite the service, the respondents have not chosen to
appear before this Court either in person or through counsel, duly
instructed.
9. Mr.L. Prabhakar, learned counsel appearing for the
appellant elaborating on the substantial questions of law would
vehemently contend that Ex.A1 which is a sale deed executed by the
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S.A (MD) No.7 of 2015
grandfather of the plaintiff in favour of the Cooperative Bank cannot be
taken as a document of title for the purpose of granting a declaration of
title in favour of the plaintiff with regard to “A” schedule property. He
would further contend that when the father of the plaintiff was alive on the
date of the suit, the plaintiff has no right over the property and cannot
seek a decree for declaration. He would also rely upon the Judgment of
the Hon'ble Supreme Court reported in 2014(4) CTC 471 (Union of India
Vs. Vasavi Co-op. Housing Society Ltd.,) in support of his contention that
when the plaintiff seeks declaration of title he has to prove his title beyond
reasonable doubt.
10. Ex.A1 sale deed is of the year 1952. Both the Courts
below have considered the recitals in Ex.A1 had came to the conclusion
that the plaintiff's grandfather Kandasamay Naciker was entitled to a larger
extent of property and he had after selling a small extent of land to the
Co-operative Bank, retained the remaining portion of the land with him.
I do not think that this Court can interfere with the factual findings unless
they are perverse. I find the said conclusion is in tune with the recitals in
the documents and it cannot be termed as perverse. A perusal of Ex.A1
would support the conclusion of the Courts below to the effect that the
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S.A (MD) No.7 of 2015
plaintiff's grand father Kandasamy Naicker was a owner of the larger
extent of the property. He had sold a smaller extent of property and he has
retained the remaining portion with him. Hence, the first substantial
question of law regarding the failure of the title under Ex.A1 is answered
against the appellant.
11. As far as the second question of law is concerned, it does
not actually survive as on today. Though the learned counsel appearing
for the appellant vehemently contended that since the petitioner's father
was alive, the suit was incompetent on the date of institution. Now, it is
admitted that the plaintiff and his father died pending the suit and the LRs
were brought on record even in the suit and therefore, the claim of the
appellant that the suit ought not to have been decreed for declaration
cannot be countenanced. The Courts have to taken in to account the
subsequent events and granted the relief in accordance with law.
12. The appellant counsel would vehemently contend that in
the absence of the title deed, the Courts below were not right in granting
the declaration of title.
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S.A (MD) No.7 of 2015
13. I am constrained to observe that the said contention
cannot be accepted as a legal preposition. In civil cases, the Courts are
entitled to go by preponderance of the probabilities and grant a decree for
declaration of title. It is not mandatory for a person seeking declaration of
title to produce a document of title in his favour. The Hon'ble Supreme
Court in the Larger bench decision has laid down that even a person in
adverse possession can seek declaration of title. Therefore, I do not think
that the contention of the learned Counsel the appellant that the Courts
below cannot grant a declaration of title in the absence of a title deed can
be accepted as a general proposition of law. Hence, the third substantial
question of law is answered against the defendant.
14. The 4th substantial question of law relates to the right of
the pathway. The sale deeds viz., Exs. A10 to A12 show that there was a
pathway mainly for the northern owners to reach their property from the
pathway on the south. The existence of the pathway has been spoken to by
PW.2 to PW.4. Exs.A10 to A12, have clearly demonstrated the existence
of a pathway. Therefore, eventhough the description to Ex.B1 sale deed
shows that it is a Grama Natham land. The recitals in Exs. A10 to
Ex.A12 and the evidence of PW.2 to PW.4 would demonstrate that there
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was a pathway which has been encroached upon by the defendant. The
fourth substantial question of law answered against the appellant.
15. The learned counsel appearing for the appellant would
contend that Ex.B3 would establish his title to the property in question.
Ex.B3 relates to land in S.No.269/34. Both the Courts below have
considered the effect of the said patta and found that the same will not
confer any title on the appellant. More over, Ex.B3 is only the draft patta
(Njhuha gl;lh) hence the Courts below were justified in rejecting the
same.
16. The plaintiff has sought for declaration of title to his “A”
schedule property excluding the extent of East West 5 ½ Gajams and
North south 7 ½ Gajams situated on the south eastern corner of the larger
extent. When the plaintiff has sought for declaration of his title, the 6th
substantial question of law strictly does not arise.
17. Since the first substantial question of law is answered
against the appellant concluding that the plaintiff has made out a valid title
to the “A” schedule property, 7th question of law becomes irrelevant.
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18. As regards impleading of the Panchayat Board, there was
no plea taken or issue framed before the Courts below. It is settled
position of law that the issue relating to non joinder of necessary parties
has to be taken at the earliest point of time and hence, I do not think that
the appellant could be permitted to raise non joinder of necessary party as
an issue in the second appeal. The boundary description in EXs.A10 to
A12 would demonstrate the existence of pathway in the western side of the
defendant's property, which has been encroached upon by the defendant by
putting up a car shed. The 8th question of law is answered against the
appellant.
19. In view of the answer to the 8th substantial question of
law, 9th substantial question of law becomes in consequential.
20. The Boundary recital in documents can be relied upon to
show the nature of the grandfather's property if the persons concerned with
those documents are examined to prove the said recitals. In the case on
hand, the boundaries recital in Exs.A10 to A12 have been proved by
examining the parties or the successor in interest of parties to those
documents. Hence, the 10th substantial question of law is also answered
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against the appellant.
21. In view of the answers given to all the above substantial
questions of law, the Second appeal fails and the same is dismissed.
There shall be no order as to costs.
25.02.2021
Index : yes/no
Internet : yes/no
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S.A (MD) No.7 of 2015
To
1. The Sub Court, Kovilpatti.
2. The District Munsif Court, Kovilpatti.
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S.A (MD) No.7 of 2015
R.SUBRAMANIAN,J.,
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S.A (MD) No.7 of 2015
25.02.2021
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