Madras High Court
Gnanasekaran vs Indira on 29 January, 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
24.08.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.648 of 2021 &
CMP No.13258 of 2021
Gnanasekaran ... Appellant
Vs.
Indira ...Respondent
PRAYER: Second Appeal filed under section 100 of the Civil
Procedure Code against the Judgement and Decree dated 29.01.2021
passed in A.S.No.03 of 2018 on the file of the Court of the Subordinate
Judge, Panruti, confirming the Judgment and Decree dated
04.10.2017 passed in O.S.No.160 of 2017 on the file of the District
Munsif Court, Panruti.
For Appellant : Mr. R.Venkatajalapathy
JUDGEMENT
The defendant is the appellant before this Court challenging the
concurrent judgment and decree passed in a suit filed for a declaration
and consequential injunction. The parties, for the ease of
understanding are referred to in the same rank as before the trial
Court.
https://www.mhc.tn.gov.in/judis/
2. The plaintiff had filed a suit in O.S.No.160 of 2007 on the file
of the learned District Munsif, Panruti, for a declaration of their title
over the suit properties which consist of two items of property and a
consequential relief of permanent injunction restraining the defendant,
his men, agent or anybody on his behalf from trespassing into the suit
property.
3. The case of the plaintiff was that the suit property originally
belong to one Balasubramaniam, Son of Govindasamy Padayachi. The
plaintiff had purchased the suit property from the said
Balasubramaniam under a registered sale deed dated 10.02.2006 for a
sale consideration of Rs.27,500/-. From the date of the purchase, the
plaintiff has been in possession and enjoyment of the same. While so,
the defendant who had an eye on the property, wanted to encroach
into the suit property. With this in mind, the defendant along with his
son and henchmen, attempted to trespass into the suit property on
04.06.2006. The plaintiff attempts to file a police complaint was in
vain. He had to approach this Court for a direction to the police to file
a complaint in Crl.O.P.No.8253 of 2007. This attempt backfired on the
plaintiff as the police authorities had registered a complaint against
him on a false FIR. The plaintiff were therefore left with no other
alternative except to move the civil Court for the reliefs stated supra.
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4. The defendant had filed a written statement inter alia
contending that one acre in the suit survey number had been
purchased by him from the said Balasubramaniam under an oral sale
after paying a sum of Rs.40,000/-. It is his case that he had been
inducted into the possession of the suit property as soon as the sale
had been concluded. The defendant would submit that 50 cents of the
land of the property purchased by him was situate in S.No.493/4 and
the other 50 cents was situate in S.No.493/15. He would state that the
present survey numbers are 493/1B and 493/15A respectively. Though
Balasubramanian had received the entire sale consideration, he was
evading the execution of a sale deed and its registration. The
defendant would therefore contend that he also perfected title by
adverse possession as he is in possession for over the statutory period
i.e. for 24 years. He would further submit that on 29.06.2006, he had
executed a gift settlement deed in favour of his son Panchatcharam
and had put him in possession and enjoyment of the property. He
would submit that the suit is bad for non-joinder of necessary parties
and the plaintiff had failed to prove her possession and hence, the suit
should be dismissed.
https://www.mhc.tn.gov.in/judis/
5. The learned District Munsif, Panruti, had framed over eight
issues and parties had gone to trial with the plaintiff examining herself
as PW1 and marking Exs.A1 to A7. The defendant on his side
examined himself as DW1 and marked Exs.B1 to B4. The
Commissioner's report and plan were also marked Exs.C1 and C2.
6. The trial Court, on consideration of the evidence on record,
decreed the suit. Aggrieved by which, the defendant had filed
A.S.No.3 of 2018 on the file of the Subordinate Judge, Panruti. The
learned Subordinate Judge had also confirmed the judgment and
decree of the trial Court and dismissed the appeal. Challenging this
judgment and decree, the defendant/appellant is before this Court.
7. When the matter was posted today for admission the
arguments of Mr.Venkatajalapathy, learned counsel for the appellant/
the plaintiff were heard. He would claim a right to the suit property on
the basis of Ex.A1, sale deed dated 10.02.2006 executed by
Balasubramanian in favour of the plaintiff. The records would indicate
that on 07.07.2006, the revenue records stood mutated in the name
of the plaintiff and the adangal, chitta, etc., filed thereafter would
https://www.mhc.tn.gov.in/judis/
prove the same. The defendant, on the other hand, would claim a right
to the suit property and adjacent property on the basis of an oral sale
wherein the defendant would submit that a sum of Rs.40,000/- had
been paid to the said Balasubramaniam for both the properties. It is
needless to state that in cases of a sale where the consideration is
over and above the sum of Rs.100/-, the same has to be compulsorily
registered. The defendant admittedly did not have a written and
registered deed in his favour whereas the plaintiff had obtained a
registered sale deed and consideration had also passed. During the
cross-examination of DW2, he was unable to give details of the date
on which the oral sale had taken place. He has also admitted that
there is no document to show that he had been requesting the said
Balasubramaniam to execute and have registered a sale deed in his
favour by either sending a letter or a registered legal notice.
Admittedly, there is no documents what so ever to show that the
property had been handed over to the defendant by the said
Balasubramaniam. The Courts below have also taken note of the fact
that in the settlement deed which is executed by the defendant in
favour of his son and which has been marked as Ex.B1, the defendant
has not referred to the oral sale, on the contrary, he describes the
property as an ancestral property. Taking into account the above
factors, the Courts below have rightly allowed the claim of the plaintiff.
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Further, the plaintiff has proved her possession by filing Ex.A6 -
adangal entries.
8. In these circumstances, I do not find any reason to re-visit
the findings of the Courts below and the appellant has not made out
any questions of law warranting the interference of this Court.
Consequently, the Second Appeal stands dismissed. However, there
shall be no order as to costs. Consequently, the connected
miscellaneous petition is closed.
24.08.2021
Index : Yes
kal
https://www.mhc.tn.gov.in/judis/
To
1. The Subordinate Judge,
Panruti.
2. The District Munsif Court,
Panruti.
https://www.mhc.tn.gov.in/judis/
P.T.ASHA, J
kal
S.A.No.648 of 2021 &
CMP No.13258 of 2021
24.08.2021
https://www.mhc.tn.gov.in/judis/
