Madras High Court
Ramaiah vs Senbaga Narayanan on 11 January, 2021
S.A(MD)No.464 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 08.03.2022
DELIVERED ON : 15.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A(MD)No.464 of 2021
and CMP(MD).No.6268 of 2021
Ramaiah
Through his power agent
Azhaguvel Mari
....Appellant/Appellant
/Plaintiff
Vs
1.Senbaga Narayanan
2.Sivakumar
....Respondents/Respondents
/Defendants
PRAYER : Second Appeal filed under Section 100 of the
Civil Procedure Code, to set aside the judgment and
decree in A.S.No.58 of 2020 on the file of the
Additional District Court (Fast Track Court) Takasi
dated 11.01.2021 confirming the judgment and decree in
O.S.No.238 of 2015 on the file of the Additional Sub
Court, Tenkasi dated 14.05.2020.
For Appellant : Mr.T.S.Mohamed Mohideen
For Respondents : Mr.R.J.Karthick
1/13
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S.A(MD)No.464 of 2021
JUDGMENT
The plaintiff is the appellant.
2.The plaintiff filed O.S.No.238 of 2015 before
the Additional Subordinate Court, Tenkasi for
declaration of title and permanent injunction. The suit
was dismissed by the trial Court. The plaintiff filed
A.S.No.58 of 2020 before the Additional District Court
(FTC), Tenkasi. The learned District Judge was pleased
to dismiss the appeal. As against the same, the
plaintiff has filed the above second appeal.
3.The plaintiff has contended that the suit
schedule property originally belonged to one Pechiammal
and she had executed a registered sale deed under
Exhibit B2 dated 11.02.1991 in favour of one Deevan
Mydeen. The said Deevan Mydeen had executed a
registered sale deed under Exhibit B3 on 18.09.2000 in
favour of his daughter and son-in-law namely S.S.Maliq
and Syed Ali Fathima. The said S.S.Maliq and Syed Ali
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S.A(MD)No.464 of 2021
Fathima had executed a registered sale deed under
Exhibit B5 on 24.09.2002 in favour of one Thirumalai
Kumar under Exhibit A4 dated 05.05.2008. The said
Thirumalai Kumar has executed a registered sale deed in
favour of the plaintiff under Exhibit A5 on 23.02.2011.
Since there was a mistake with regard to the eastern
and southern boundary under Exhibit A5, a rectification
deed was executed under Exhibit A6 on 12.09.2013.
4.According to the plaintiff, he is in possession
and enjoyment of the suit schedule properties. There is
a building in the suit schedule property which is
assessed property tax and having electricity service
connection in the name of his vendor Thirumalai Kumar.
According to the plaintiff, he has let out to one
Santhosh for running a poultry farm for the past 4
years. The defendants have no right or title over the
suit schedule property and they are disturbing the
possession of the plaintiff. Hence, the present suit
for declaration of title and permanent injunction.
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S.A(MD)No.464 of 2021
5.The defendants filed a written statement
contending that originally the suit schedule property
jointly belonged to the sons of Chithiraikannu Mudaliar
namely Karadimuthu Mudaliar and Arunachala Mudaliar. In
oral partition, the suit schedule property was allotted
to the share of Karadimuthu Mudaliar. He had executed a
registered sale deed in favour of Esakki Ammal for an
extent of 52 cents in Survey No.490/4 under Exhibit B1
on 05.04.1984. The said Esakki Ammal and her children
have executed a registered sale deed under Exhibit B2
on 11.02.1991 in favour of one Deevan Mydeen for an
extent of 94 cents in Survey No.498/4. The said Deevan
Mydeen had executed a registered sale deed in favour of
his daughter and son-in-law under Exhibit B3 on
18.09.2000. Thereafter, the same Deevan Mydeen had
executed an another sale deed in favour of one
S.S.Maliq and Syed Ali Fathima for an extent of 82
cents in Survey No.498/3 without any right or title.
Hence, the plaintiff does not get any title to the suit
schedule property. The original vendor of the plaintiff
is having title only for Survey No.498/4 and not over
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S.A(MD)No.464 of 2021
survey No.498/3. Hence, the plaintiff does not have any
right or possession over the suit schedule property.
Hence, he prayed for dismissal of the suit.
6.The trial Court after considering the various
documents filed on the side of the plaintiff and the
defendants arrived at a finding that the plaintiff's
vendor namely Deevan Mydeen had purchased 94 cents in
Survey No.498/4 from one Esakki Ammal and others under
Exhibit B2 dated 11.02.1991. He has sold away the said
extent in favour of his daughter and his son-in-law
namely S.S.Maliq and Syed Ali Fathima under Exhibit B2
on 18.09.2000. However, the said Deevan Mydeen had
created a sale deed on 26.09.2000 again in favour of
his daughter and his son-in-law for an extent of 82
cents in Survey No.498/3. Since Deevan Mydeen has not
purchased Survey No.498/3 from his vendor Esakki Ammal,
he did not have any right or title to execute Exhibit
A2/B4 sale deed in favour of S.S.Maliq and Syed Ali
Fathima for Survey No.498/3. Only based upon this
Exhibit A2/B4 sale deed, the plaintiff's vendor
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S.A(MD)No.464 of 2021
Thirumalai Kumar had purchased Survey No.498/3 under
Exhibit A4 dated 5.5.2008. The plaintiff had purchased
from Thirumali Kumar under Exhibit A5 on 23.02.2011.
Hence, it is evident that the plaintiff's predecessor
in title namely Deevan Mydeen had executed Exhibit
A2/B4 sale deed with regard to Survey No.498/3 without
any right or title. The trial Court also found that the
boundary recital in document projected on the side of
the plaintiff won't tally with each other. Based upon
the said findings, the trial Court dismissed the suit.
7.The First Appellate Court independently analysed
the oral and documentary evidence filed on either side.
The First Appellate Court had drawn a tabular column to
arrive at a finding with regard to the survey number
that was dealt with in which one of the documents. The
First Appellate Court has also carefully perused the
boundary recital in each one of the documents filed on
the side of the plaintiff. After the said exercise, the
First Appellate Court has arrived at a finding that the
plaintiff's title is flawed and hence, he is not
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S.A(MD)No.464 of 2021
entitled to a decree for declaration of title and
permanent injunction. As against the same, the
plaintiff has filed the above second appeal.
8.The learned counsel for the appellant had
contended that the Courts below have not properly
appreciated the documents filed on the side of the
plaintiff. The plaintiff proved his chain of continuous
document from the year 1991 onwards. According to the
learned counsel for the appellant, the plaintiff has
filed Exhibits A2, A3, A4 and A5 in order to establish
his title over the suit schedule property. According to
the appellant, the Courts below have erred in arriving
at a finding that the plaintiff has not established his
title over the suit schedule property. Relying upon
Exhibit B2 document said to have been executed by
Esakki Ammal in favour of Deevan Mydeen and
consequential document executed by Deevan Mydeen in
favour of his daughter and son-in-law under Exhibit B4.
He further contended that the defendants have not
established their title or possession over the suit
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S.A(MD)No.464 of 2021
schedule property. He further contended that the trial
Court as well as the First Appellate Court have relied
upon the correlation certificate marked as Exhibits B7
to non suit the plaintiff. The learned counsel for the
appellant further contended that Exhibit A3 sale deed
will clearly establish that there is a poultry farm in
the suit schedule property as contended by the
plaintiff. He further contended that the plaintiff and
his predecessor in title are in possession of the suit
schedule property for more than 25 years. He further
contended that the Courts below erroneously accepted
Exhibits B1 to B5 relating to the suit schedule
property. The Courts below ought not to have rejected
the rectification deed executed under Exhibit A6 on
12.09.2013. He further contended that he has produced
the patta under Exhibit A9 tax receipts under Exhibits
A10, 12 and 13. Hence, he prayed for admitting the
second appeal.
9.I have considered the submission made on the
side of the appellant.
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S.A(MD)No.464 of 2021
10.It is the specific case of the appellant that
he is the absolute owner of 82 cents in Survey No.
498/3. In the plaint, he has contended that the suit
schedule property originally belonged to one Pechiammal
who had executed a sale deed in favour of one Deevan
Mydeen under Exhibit B2. The said Deevan Mydeen had
executed a sale deed in favour of S.S.Maliq and Syed
Ali Fathima under Exhibit A2/B4. Thereafter, the said
S.S.Maliq and Syed Ali Fathima have executed a sale
deed in favour of one Thirumalai Kumar under Exhibit
A4. The said Thirumalai Kumar has executed a registered
sale deed in favour of the plaintiff under Exhibit A5.
According to the plaintiff, the sequence of the
document would establish his title. However, a careful
reading of the other documents will lead to a different
finding. It an admitted fact that the suit schedule
property originally belonged to one Karadimuthu
Mudaliar who had executed a registered sale deed in
favour of one of the Esakki Ammal for survey No.498/4
for an extent of 52 cents. The said Esakki Ammal and
her children have sold away 94 cents in Survey No.498/4
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S.A(MD)No.464 of 2021
under Exhibit B2 on 11.02.1991. Up to this sale deed,
there cannot be any dispute between the parties.
11.The purchaser in Exhibit B2 namely Deevan
Mydeen had title only for 94 cents in Survey No.498/4.
He sold away the said extent in the same survey number
to his daughter and his son-in-law under Exhibit B3
which cannot be faulted with. However, after 8 days,
the same Deevan Mydeen had executed another sale deed
in favour of his daughter and his son-in-law under
Exhibit A2/B4 on 26.09.2000 for an extent of 82 cents
in Survey No.498/3. This document has resulted in
filing of the present suit. The said Deevan Mydeen had
purchased 94 cents only in Survey No.498/4 under
Exhibit B2. After disposing of the same under Exhibit
B3, the said Deevan Mydeen has proceeded to alienate a
different Survey number namely 498/3 again in favour
of his daughter and his son-in-law. All the other sale
deeds namely Exhibits A3 to A5 till the purchase of the
plaintiff are based upon Exhibit A2/B4. Though the said
Deevan Mydeen was examined as PW3 on the side of the
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S.A(MD)No.464 of 2021
plaintiff, he was not able to explain how he had
executed Exhibit B2/B4 as well as Exhibit A2/B4 when he
had purchased only 94 cents. Hence, the title of the
plaintiff is completely flawed. That apart, the
boundary recital in various documents projected by the
plaintiff also do not tally with the suit schedule
property.
12.When the plaintiff's ancestors in title is
entitled to property only in Survey No.498/4, the
plaintiff has purchased Survey No.498/3 from his
ancestors in title. Hence, the plaintiff has not
established his title over the suit schedule property.
13.Though the plaintiff has raised a dispute with
regard to the title and possession of the defendants,
it is settled position of law that he cannot rely upon
the weakness on the side of the defendants.
14.In view of the above said discussion, the
Courts below have rightly arrived at a finding that the
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S.A(MD)No.464 of 2021
plaintiff has not established his title and possession
over the suit schedule property. I do not find any
question of law much less a substantial question of law
that arises for consideration in the present Second
Appeal. The judgement and decree of the Courts below
are confirmed. The Second Appeal stands dismissed at
the admission stage itself. No costs. Consequently,
connected miscellaneous petition is closed.
15.03.2022
msa
Index : Yes / No
Internet : Yes / No
To
1.The Additional District Judge
(Fast Track Court)
Tenkasi
2.The Additional Subordinate Judge
Tenkasi
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.464 of 2021
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A(MD)No.464 of 2021
and CMP(MD).No.6268 of 2021
15.03.2022
https://www.mhc.tn.gov.in/judis
