Madras High Court
Rasappan vs Chinnaranga Naicker on 25 January, 2021
S.A.No.1115 of 1999
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.1115 of 1999
and
C.M.P.No.10790 of 1999
1. Rasappan
2. Chinnian
3. Ranga Naicker
4. Subbammal
5. Kuppammal
6. Gurusamy
7. Saraswathy
8. Thangavel
9. Nagammal .. Appellants
/versus/
1. Chinnaranga Naicker
2. Pappa Naicker
3. Rangasamy
4. Chinnasamy
5. Krishnasamy .. Respondents
https://www.mhc.tn.gov.in/judis/
S.A.No.1115 of 1999
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
Judgement and decree dated 29.01.1999 on the file of the Principal
District Judge, Erode in A.S.No.162 of 1998 and against the Judgement
and decree made in O.S.No.146 of 1995 dated 18.08.1998 on the file of
District Munsif Cum Judicial Magistrate, Perundurai.
For Appellants : Ms.K.Indupriya
For Respondents : No appearance
JUDGMENT
The defendant is the appellant herein. The respondent / plaintiff
filed a suit for declaration of title deed and for permanent injunction.
After trial, suit was decreed and the appeal preferred was dismissed and
hence the Second Appeal has been filed.
2. The respondent / plaintiff filed a suit for declaration of title
deed and for permanent injunction based upon the partition deed. The suit
property belongs to the first plaintiff and the father of the plaintiffs 2 to 5
in the oral partition, the properties have been divided and subsequently
the partition deed was registered on 30.06.1995. After the death of the
father of the plaintiffs 2 to 5, the suit has been filed. Since the defendants
in the Appeal Suit had interfered with the possession of the plaintiffs, the
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S.A.No.1115 of 1999
defendants / appellants filed written statement inter alia contending that
the suit property is in the continuous, peaceful possession and enjoyment
by them and denied Ex.P1. In the trial, the third plaintiff was examined
as PW1 and Ex.A1 to Ex.A3 were marked and the first defendant was
examined as DW1 and Ex.B1 was marked. The trial Court accepted the
case of the plaintiffs and granted the decree and on appeal the same was
confirmed. Challenging the same, this Second Appeal has been filed.
3. The above Second Appeal has been admitted on the
following substantial questions of law;
" Whether the Courts below are right in
placing the burden of proof in this case on the defendants
to establish their title to the suit property. As the suit is
for declaration of the plaintiff's title to the suit property
and for permanent injunction.
(b) Whether the Courts below are right in
holding that the reasoning of the Courts on the basis of
"Possession follows title" the plaintiffs are entitled to the
relief of declaration and injunction.
(c) Whether the Courts below are right in
decreeing the suit when the plaintiffs in the suit have
ommitted to implead the second defendant alone when
there are several legal heirs to late, Chinnaranga
https://www.mhc.tn.gov.in/judis/
Naicker, when the suit is for declaration and permanent
S.A.No.1115 of 1999
injunction.
(d) Whether Courts below are right decreeing
the suit when a specific plea was raised that the suit is
bad for non joinder of the heirs of the Late. Chinnaranga
Naicker. But the plaintiffs failed to implead them and the
Courts also ignored that aspect in decreeing the suit."
4. Heard the Learned Counsel appearing on behalf of the
Appellants.
5. According to the plaintiffs Ex.A1 is the source of the title and
partition. On a perusal of Ex.A1, it is seen that it is 30 years old document
on the date of marking and hence the Lower Appellate Court has rightly
come to the conclusion that Ex.A1 is a ancient document. Accordingly,
they are entitled for presumption as to the contents and substance of the
document.
6. To rebut the presumption, arising under Ex.A1, the
defendants / appellants have not filed any document or let in any strong
oral evidence also assumes significance. It is needless to say that
according to the respondents / plaintiffs, the evidence of the PW1 is found
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S.A.No.1115 of 1999
to be materially in corroboration with Ex.A1 which is admittedly ancient
document. The suit property is a vacant site. On a combined reading of
the documentary evidence of Ex.A1 coupled with the evidence of PW1,
both the Courts below have correctly concluded that the pleadings should
rebut the presumption made in favour of the plaintiffs. The defendants
have marked Ex.B1 patta. With regard to the genuineness of the Ex.B1
patta, the Lower Appellate Court has rightly come to the conclusion that
the name of defendants 2 & 3 were not mentioned in the patta and the
names of the other defendants have been subsequently included by way of
interpolation in it and furthermore, the ink was also in different colour
and observed that Ex.B1 patta has been marked on behalf of the
defendants during the pendency of the suit and hence has categorically
rejected Ex.B1 by holding that Ex.B1 having been obtained after the suit
to show the alleged possession and also found various infirmities in
description, as narrated above, and rightly rejected Ex.B1.
7. In the absence of any source of title of the defendants /
appellants and in view of the positive evidence available under Ex.A1
coupled with the evidence of the PW1, both the courts below have rightly
come to the conclusion that the plaintiffs are the owners and are entitled
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S.A.No.1115 of 1999
for the relief of declaration of title and they are in the possession of the
property and accordingly decreed the suit. Hence on the above factual
matrix of the case as spoken to by oral Evidence and as demonstrated
under the documentary evidence, the substantial questions of law does not
arises for consideration. I find no merit in this Second Appeal.
8. In this view of the matter, the Second Appeal is dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
25.01.2021
Index : Yes/No
Internet : Yes/No
kmm
To
1.The Principal District Judge,
Principal District Court,
Erode.
2.The District munsif-cum- Judicial Magistrate,
Perundurai.
https://www.mhc.tn.gov.in/judis/
S.A.No.1115 of 1999
RMT.TEEKAA RAMAN, J.
kmm
S.A.No.1115 of 1999
and
C.M.P.No.10790 of 1999
Dated:25.01.2021
https://www.mhc.tn.gov.in/judis/
