Kandavel vs Gurumoorthy .. 1St
2021 Latest Caselaw 1142 Mad

                                                                                 SA(MD)No.4 of 2015

                              BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              Dated : 20.01.2021

                                                       CORAM

                               THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN

                                              SA(MD)No.4 of 2015
                               and M.P(MD)No.1 of 2015 and CMP(MD)No.4607 of 2016

                     1.Kandavel
                     2.Sivan
                     3.Mayand Thevar (died)          .. Appellants/Appellants/Defendants

                                               Vs.

                     1.Gurumoorthy                   .. 1st Respondent/Plaintiff/Respondent
                     2.Amma Pillai
                     3.Sivan
                     4.Murugesan                     .. Respondents 2 to 4

                     RR2 to RR4 are brought on records as lrs of deceased third appellant vide
                     order daed 7.6.2019 made in CMP(MD)No.11514 to 11516 of 2018


                     PRAYER:- Second Appeal is filed under Section 100 of Civil Procedure
                     Code against the Judgment and Decree passed in A.S.No.11 of 2012 dated
                     09.07.2014 on the file of the 2nd Additional Subordinate Judge, Madurai
                     confirming the judgment and decree passed in O.S.No.480 of 2008 dated
                     03.06.2011 on the file of the District Munsif Court, Thirumangalam,.


                                   For Appellants       : Mr.PTS. Narendra Vasan
                                   For R1              : Mr.A.Haja Mohideen




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                                                                                    SA(MD)No.4 of 2015




                                                   JUDGMENT

The defendants in O.S.No.480 of 2008 are on appeal challenging the

affirmation of the decree for permanent injunction, made in the said suit, by

the appellate court in A.S.No.11 of 2012.

2. The suit was laid by the first respondent herein, as plaintiff,

claiming that he is entitled to an extent of 5 ½ cents in survey No.75/14 of

Thoppur Village by virtue of his purchase from the legal representatives of

one R.S.Gopal under sale deed dated 04.01.2008. It is further claimed by the

plaintiff that the property in question was allotted to R.S.Gopal under

partition that took place between R.S.Gopal and his brother R.S.Govindaraj

on 16.11.1998. Pursuant to the purchase, the revenue records were also

mutated in favour of the plaintiff. Claiming that the defendants are

attempting to interfere with his possession, the plaintiff sued for the relief of

permanent injunction.

3. The suit was resisted by the defendants contending that the suit

property belongs to them ancestrally and 1 ¾ cents were already sold by the http://www.judis.nic.in2/10 SA(MD)No.4 of 2015

ancestors of the defendants and the remaining 3 ¼ cents was always in

their possession.

4. At trial, the plaintiff was examined as P.W.1 and one Subbaiah

was examined as P.W.2 and Ex.A.1 to Ex.A10 were marked. The third

defendant was examined as D.W.1 and one Velu was examined as D.W.2

and no documentary evidence was produced on the side of the defendants.

5. The trial court, upon consideration of the evidence on record,

concluded that the vendors of the plaintiff namely, the legal heirs of

R.S.Gopal are entitled to the property and the sale by them in favour of the

plaintiff is valid. The trial court also took note of the recitals in the sale

executed by the defendants in favour of the plaintiff, which showed that the

property conveyed therein has boundary on north by property of A.R.Subba

Naidu, who is admittedly the father of R.S.Gopal, the predecessor in

interest of the vendors of the plaintiff. Upon reaching the said conclusion,

the learned trial Judge also faulted the defendants for not producing any

document in support of their contention. On the above conclusion, the trial

court decreed the suit as prayed for.

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6. Aggrieved, the defendants preferred an appeal in A.S.No.11 of

2012. They also filed an application for appointment of Advocate

Commissioner to identify the property with reference to the sale deed dated

26.06.1941. The appellate court, upon re-consideration of the evidence on

record, concurred with the findings of the trial court and concluded that the

application for appointment of Advocate Commissioner is wholly

unnecessary to decide the dispute between the parties. Upon such finding,

the lower appellate Judge dismissed the appeal. Hence, the Second Appeal.

7. The following questions of law were framed by this Court at the

time of admission:

(i) Whether the Courts below are right in finding that the

plaintiff established his case by marking Ex.A2 and A3 sale

deed and patta respectively, particularly when the vendor's title

under Ex.A2 has not been proved and more particularly when

the vendor's patta and partition deed marked as Ex.A9 and A10

have been rejected by the Courts below?

(ii) Whether the Courts below are right in shifting the

burden of proof on the shoulder of the defendants and rendered a

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finding stating that mere oral evidence without supporting of the

documentary evidence be relied to accept the contention of the

defendants, particularly it is the bounden duty of the plaintiff to

prove his case independently?

(iii) The specific finding that Ex.A9 and Ex.A10 are

Xerox copy of patta and Xerox copy of partition deed cannot be

relied upon and rejected the same and inspite of the same

whether there is any justification in granting decree relying on

Ex.A2 and Ex.A3.

(iv) Whether the suit for bare injunction is maintainable in

the absence of the relief for declaration of title, particularly

when the defendants genuinely denied the tile of the plaintiff in

respect of the suit property?

(v) Whether the lower appellate Court in right in deciding

the application in I.A.No.153 of 2013 for appointment of an

advocate Commissioner along with the main appeal and

dismissing the same particularly the application has to be

decided at the first instance before deciding the main issue in the

appeal?

(vi) Whether the lower appellate Court in right in

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dismissing the application without giving any opportunity to the

defendant in order to prove his possession of the suit property?

8. I have heard Mr.PTS.Narendra Vasan, learned counsel appearing

for the appellants and Mr.A.Haja Mohideen, learned counsel for the first

respondent.

9. Mr.PTS.Narendra Vasan, learned counsel appearing for the

appellants elaborating on the questions of law would contend that the courts

below are not right in dismissing the suit even after rejecting the partition

deed Ex.A.1 filed by the plaintiff. He would also submit that the appellate

court erred in dismissing the application for appointment of Commissioner

when the identity of the property was specifically questioned by the

defendants. The learned counsel would further submit that the non-

production of the original partition deed is fatal to the case of the plaintiff.

10. I have considered the submissions of the learned counsel on either

side.

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11. Both the courts below have found that Ex.A.2 sale deed Ex.A.3

patta relate to the suit property. Ex.A.2 sale deed has been executed by the

legal heirs of R.S.Gopal, who is the son of Subba Naidu, the original

pattadhar. The patta that stands in the name of Subba Naidu has also been

produced by the plaintiff. Therefore, non-production of the partition deed

will not affect the right of the plaintiff. Yet another important document is

the sale deed executed by the purchasers of the interest of the defendants on

26.06.1941 which has been marked as Ex.A.5. The said sale deed would

clearly describe the northern boundary of the property sold under sale deed

as belonging to A.R.Subba Naidu. The defendants have not denied the

claim of the plaintiff that the vendors of the plaintiff are the legal heirs of

R.S. Gopal son of Subba Naidu.

12. In the light of the above factual conclusion, the rejection of

Ex.A.9 and Ex.A.10 namely, the xerox copy of the patta and the xerox copy

of partition deed by the trial court would not have effect of denuding the

plaintiff's right over the suit property. The defendants are also disputing the

identify of the property in the written statement. Though they claimed that

they are entitled to 5 cents of land in suit survey number after the sale of 1

¾ cents under sale deed on 26.06.1941, they are in possession in 3 1/4

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cents continuously, as rightly pointed by the courts below, the defendants

have not supported their case by any documentary evidence. The recitals

under Ex.A.5 sale deed would clearly demonstrate that the defendants did

not have any other land in the suit survey number after sale deed dated

26.06.1941. There was no land belonging to the defendants in the suit

survey number after the said sale. The boundary description in the said

document would confirm the fact that the defendants had sold whatever land

they had in the suit survey number under the sale deed. In the light of the

above, the courts below cannot be faulted in concluding that the plaintiff

has proved his title and possession of the suit property and they are entitled

to an injunction.

13. The application filed for appointment of a Commissioner is in the

nature of application under Order 41 Rule 27 C.P.C and the requirements of

the said provision should be satisfied by a person before he seeks

appointment of Advocate Commissioner at the appellate stage. The learned

Appellate Judge has found that the requirements of Order 41 Rule 27 C.P.C

have not been complied with while dismissing the application. I do not see

any reason to interfere with such conclusion of the learned Appellate Judge.

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14. In the light of the above, the substantial questions of law framed

are answered against the appellants and the appeal is dismissed. No costs.

Consequently, connected miscellaneous petitions are closed.

20.01.2021 Index : Yes/No Internet: Yes/No CM

To:

1.The I Additional Subordinate Judge, Nagercoil

2.The Principal District Judge, Kanyakumari District at Nagercoil

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

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R.SUBRAMANIAN.J.,

CM

SA(MD)No.4 of 2015

20.01.2021

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