Madras High Court
S.Ramamchandran vs Vasantha on 22 January, 2021
S.A. No. 705 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.01.2021
CORAM
THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY
S.A.No.705 of 2020
S.Ramamchandran ... Appellant
-vs-
Munusamy @ Selvaraj (Died)
1.Vasantha
2.Nalin
3.Durgadevan ...Respondents
PRAYER: The Second Appeal is filed under Section 100 of CPC r/w Order
42 Rule 1 of CPC, to set aside the judgment and decree dated 28.01.2019
made in A.S.No.21 of 2013 on the file of the Subordinate Court, Ranipet
confirming the judgment and decree dated 02.07.2013 made in O.S.No.64 of
2006 on the file of the District Munsif cum Judicial Magsitrate Court No.I,
Wallajah.
For Appellant : Mr.A.Gopinath
JUDGMENT
The second appeal has been filed challenging the judgment and
decree dated 28.01.2019 made in A.S.No.21 of 2013 on the file of the
Subordinate Court, Ranipet confirming the judgment and decree dated
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S.A. No. 705 of 2020
02.07.2013 made in O.S.No.64 of 2006 on the file of the District Munsif cum
Judicial Magsitrate Court No.I, Wallajah.
2.The appellant has filed this second appeal raising the following
substantial questions of law:
“1.The Appellate Court erred in holding that as the
Town Survey filed Register for the year 1908 house bearing
Door No.59 stands in the name of the appellant's father
namely Samy Varadaraj and another house bearing Door
No.58, stands in the nme of Appellant's father's brother
namely Kuppan marked as Ex.A1 by the Appellate ourt in
which it is clearly mentioned that the house bearing Door
No.59 comprised in New Survey No.2074/1A old Survey
No.2074/1 but in perusal of sale deed Document
No.1513/1927 Ex.A1 and Sale Deed Document No.1820/1942
(Ex.A2) the respondent's father and mother purchased houe
vacant site in Survey No.2074/1 and put up thatched house
thereon and paid house tax on the basis of Ex.A3 for the said
house bearing Door No.58 is not possible as per the law?
2.The Appellate Court failed to se that when the
respondents have not produced any parental valid sale
documents/in respect of the Item No.1 and 2 of the suit
schedule property. The Appellate Court cannot presume and
assume that the respondent's/Plaintiff's father and mother are
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S.A. No. 705 of 2020
the valid purchasers of the suit schedule properties and
purchased the same from the true owners of the suit schedule
properties on the basis of the sale deed document
No.1513/1927 (Ex.A1) and sale deed Document
No.1820/1942 (Ex.A2)?”
3.The learned counsel for the appellant by raising the above
subsatntial questions of law submitted that the appellant has marked Exs.A1
to A3 before the First Appellate Court. Ex.A1 is the Town Survey Register
Copy stands in the name of the defendant's father and brother. Ex.A2 is the
Town Survey Register copy and Ex.A3 is the Sale deed executed by the
father and others in favour of one Perumal. He further submitted that though
the First Appellate Court has permitted the appellant to mark the Exs.A1 to
A3 and by virtue of the town survey this appellant has proved his ownership
without giving proper weightage for the documents, the Court below has
failed to consider the same in a proper perspective and hence the present
second appeal has been filed.
4.At this point of time, it is pertinent to extract the relevant protion
of the judgment and decree passed by the Trial Court, which is reproduced
hereunder:
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S.A. No. 705 of 2020
“DECLARATORY RELIEF (Issue No.I)
The plaintiff has filed the suit on the weight of the
documents marked as Ex-A1 and Ex-A2. Ex-A1 is the
certified copy of the Sale Deed dated 24.06.1927. It is the
sale deed executed by Periya Munusamy, Chinna Munusamy
and Varadaraji in respect of the S.No.2074/1, which is the
suit Item No.1 of the properties. Ex.A2 is the certified coy of
the Sale Deed dated 21.07.1942, executed in favour of
Nagammal by one Masilamani. It pertains to the S.No.2074/1.
According to Ex-A1, the plaintiff's father purchased an extent
of East-West 13½ cubits and North-South 13½ cubits out of
43 cents in S.No.2074/1. Through Ex-A2, the mother of the
palitnff purchased an extent of 2½ cents in the S.No.2074/1.
Both the exhibits are more than 30 years old. The
presumption under section 90 of Indian Evidence Act, 1872 is
applied. The defendant has not produced even a single
document to show that the defendant's father hold title and
after him the defendant is in possession and enjoyment of the
suit properties. The documents produced by the defendant
are the Tax Receipts and the Demand Notice issued by the
Walaja Municipality. But, no cor-relating documents are
produced to show that the tax receipts pertained to the suit
survey number. Even during his cross examination, D.W.1
has stated that his suit survey number is 2074/A. Relying Ex-
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S.A. No. 705 of 2020
A1 and Ex-A2, the Court finds that the suit property belonged
to the parents of the plaintiff. To prove that the plaintiff is the
legal heir of Kuppan and Nagammal, the evidence of P.w.2 is
considered. Moreover, the defendant has not denied the
paternity of the plaintiff. Therefore, the Court is inclined to
declare the title of the plaintiff.
INJUNCTION (Issue No.2)
To prove the possession, the plaintiff has filed the
Tax Receipts and the Demand Notice, issued by the Walajapet
Municipality as Ex-A3 (series). Though cor-relating
document is not produced, the title of the plaintiff is proved as
stated above. The plaintiff has pleaded that when the plaintiff
was about to construct a house in the suit proerty, the
defendant distrubed his possession. It can be presumed that
when the defendant deneis the title of the plaintiff, he would
have distrubed the construction in the suit property. The
defendant's plea is that he possessed the suit land. In Ex-A2,
the land of the defendant is cited as Western boundary. This
shows that the defendant's father Varadaraji is the adjacent
owner of the suit property. P.W.2 has stated that the plaintiff
is in possession agyer the demise of his parents. The
possession of the plaintiff is found to have been proced. As
discussed above, the title over the suit property us said to
have been proved and the prima-facie case is made out.
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S.A. No. 705 of 2020
When coming into the question of irrepairable loss, if the
injunction is not granted, the plaintiff may be put to hardship
by the defendant as he denied the title of the plaintiff. In these
views, the Court is inclined to grant the relief of injunction by
answering this issue in favour of the plaintiff.
In final, it is decreed that the plaintiff has got right
and title over the suit properties and he is granted with the
relief of injunction by restraining the defendant, his men or
agents from in any way interfering with the peaceful
possession of the plaintiff. The defendant is also directed to
pay the costs of this suit to the plaintiff.”
5.The Trial Court after analysing all the evidence throughly (i.e)
Exs.A1 to A3, Exs.B1 to B4 and deposition of P.W.1 and P.W.2 has come to
the conclusion that the property belong to the plaintiff and held that in order
to prove the ownership and possession of the property the
appellant/defendant has not produced proper document and the suit was
decreed in favour of the respondents/plaintiffs
6.The said judgment and decree was taken up on challenge by the
appellant/defendant to the Subordinate Judge, Ranipet in A.S.No.21 of 2013.
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S.A. No. 705 of 2020
7.The First Appellate Court after analysing the documents and other
exhibits filed before the Court below and judgment and decree of the Trial
Court, has confirmed the judgment and decree passed by the Trial Court. The
relevant portion of the judgment passed by the First Appellate Court is
extracted hereunder:
“18.The Appeallant has not produced any document
to show that the suit property exclusively belongs to his father
and he is in possession and enjoyment of the same. His own
sale deed Ex.A3 shows that a portion of the suit property was
sold by the Appellant's father and brothers to one
Kuppusamy. It is pertinent to point out that the plaintiff's
father and mother has also purchased a portion of the land in
S.No.2074/1 fom the Appellant's father and brothers and they
were in possession and enjoyment of the same. S.No.2074/1
consists of 43 cents out of which the plaintiff's mother
andfather have purchased only 7 cents and were in possession
and enjoyment of the same from the date of purchased till
their demise paying tax. The tax receipts were filed by the
Respondent/Plaintiff and after demise, the plaintiff is in
possession and enjoyment and paying the tax. The counsel
for the appellant contended that the plaintiff failed to prove
that he is the only legal heir of his parents hence he is not
entitled for declaration. On the side of the plaintiff, one
Thiru.d.Lakshmanan was examined as PW2. He has
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S.A. No. 705 of 2020
categorically stated that the plaintiff is the only son of
deceased Kuppan and Nagammal. Thus the
respondent/plaintiff has proved his title through Ex.A1 to A3
marked in the suit hence entitled for declaration of title. The
plaintiff has stated that when he was about to construct a
house the Appellant/Defendant distrub the construction hence
sought for injunction. It has been held that the suit property
belongs to the plaintiff and he is entitled for declaration of
title hence the defendant has no right to interfere with the
plaintiff in the suit property hence the respondent/plaintiff is
entitled for permanent injunction.
19. Considering all the above facts, the Trial court
has rightly held that the plaintiff is entitled for declaration
and permanent injunction and has decreed the suit. Hence
there is no necissity arise to interfere in the finding of the
Trial Court. Thus point no.2 is answered accordingly and it
is answere to point no.3 that the appellant is not entitled to
any other relief.”
8. Upon hearing the learned counsel for the appellant and a persual
of the materials available on records, would show that the First Appellate
Court has throughly examied Exs.A1 to A3 and has come to the conclusion
that the appellant/defendant has also not proved his possession by way of
documentary evidence and therefore the property is not belongs to the
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appellant/defendant. Further, both the Trial Court and the First Appellate
Court concurrently found that Ex.A1 and Ex.A2, marked sale deeds before
the trail are more than 30 years old and rightly applied the presumption under
Section 90 of the Indian Evidence Act, 1872.
9. Both the Trial Court as well as the First Appellate Court have
throughly examined all the aspects including the documents filed as exhibits
as well as the depositions of both the parties and has concurrently come to
the conclusion that the plaintiff has established the possession of the property
and they are the owner of the property. The judgement and decree of the
Courts below are well reasoned and therefore, no interference is required. In
fine, I concur with the findings of the Trial Court as well as the First
Appellate Court.
10. Further, this Court does not find any Substantial Questions of
Law that arises for consideration in the present second appeal as proposed by
the appellant herein. Therefore, this Court is not inclined to entertain this
second appeal.
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11.Accordingly, the Second Appeal is dismissed. No costs.
22.01.2021
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
rst
To
1. The Subordinate Judge's Court, Tiruttani.
2. The District Munsif Court, Tiruttani.
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S.A. No. 705 of 2020
KRISHNAN RAMASAMY.J.,
rst
S.A.No.705 of 2020
22.01.2021
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