Madras High Court
Sivakolunthu (Died) vs The State Of Tamil Nadu on 11 January, 2021
S.A..No.1357 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2021
CORAM
THE HONOURABLE MR. JUSTICE T. RAVINDRAN
S.A.No. 1357 of 2008
1. Sivakolunthu (died)
S/o. Periyannagounder
2. Pappathi
W/o. Late Sivakolunthu
3. Bharathamani,
D/o. Late Sivakolunthu
4. S. Manickavasakan
S/o. Late Sivakolunthu
5. S. Jayakanth
S/o. Late Sivakolunthu ... Appellants
Appellants 2 to 5 brought on record as Lrs of the
deceased sole appellant viz. Sivakolunthu vide order of
court dated 02.01.2020 made in CMP No.27339, 27334
and 27342/2019 in S.A. No.1357/2008.
Vs.
1. The State of Tamil Nadu
Rep. by its District Collector
Erode.
2. The Tahsildar
Bhavani Taluk
Bhavani, Erode District
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S.A..No.1357 of 2008
3. C. Jagadeesan
S/o. Chinnasamy ... Respondents
Prayer: Second Appeal filed under Section 100 of the Civil Procedure
Code praying to set aside the judgment and decree dated 18.04.2007
made in A.S. No.7 of 2006 on the file of the Additional District
Court/Fast Track Court No.IV, Bhavani, confirming the judgment and
decree dated 28.09.2004 made in O.S. No.504 of 2004 on the file of the
second Additional District Munsif Court, Bhavani.
For Appellants : Mr. N. Manokaran
For Respondents
For R1 & R2 : Mr. N. Manikandan
Government Advocate(CS)
For R3 : Mr. A. Sundaravadhanan
JUDGMENT
Challenge in this second appeal is made to the judgment and
decree dated 18.04.2007 passed in A.S. No.7 of 2006 on the file of the
Additional District Court/Fast Track Court No.IV, Bhavani, confirming
the judgment and decree dated 28.09.2004 passed in O.S. No.504 of 2004
on the file of the Second Additional District Munsif Court, Bhavani.
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S.A..No.1357 of 2008
2. For the sake of convenience, the parties are referred to as per
their rankings in the trial court.
3. The plaintiff in O.S. No.504 of 2004 is the appellant in the
second appeal.
4. The suit has been laid by the plaintiff seeking the relief of
declaration of his title in respect of R.S. No.394/5, 0.00.73 hectare and
R.S. No.394/7, 0.03.30 hectare and for the relief of permanent injunction
with reference to R.S.No.394/7 and for the relief of Mandatory
injunction.
5. In support of the plaintiff's case, P.W.1 was examined and
Exs. A1 to A8 were marked. On the side of the defendants, D.Ws. 1 and
2 were examined and Exs.B1 to B11were marked.Exs. C1 and C2 were
also marked.
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S.A..No.1357 of 2008
6. The courts below, on an appreciation of the materials placed
on record, both oral and documentary, and the submissions put forth by
the respective parties, were pleased to uphold the declaration of the
plaintiff's title qua R.S. No.394/5 0.00.73 hectare and rejected the relief
sought for by him in respect of R.S. No.394/7 0.03.30 hectare. However,
granted the relief of Mandatory Injunction sought for by the plaintiff.
Aggrieved over the judgment and decree of the courts below, the present
second appeal has been preferred by the plaintiff.
7. From the materials placed on record, it is found that the
plaintiff, at the first instance, has claimed the title to the property
comprised in R.S. No.394/7 based on the patta said to have been issued
in his favour. Subsequently, he has amended the plaint and also put forth
that he has obtained the title to the abovesaid property by way of the sale
deed dated 17.12.1969 marked as Ex.A4. As rightly pointed out by the
courts below, under Ex.B10 petition submitted by the plaintiff to the
Bhavani Revenue Tahsildar, the plaintiff would claim that he has
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S.A..No.1357 of 2008
acquired the title to R.S. No.394/7 both by way of purchase as well as
ancestrally. Therefore, as rightly concluded by the courts below, the
plaintiff is not sure as to how he had acquired and claiming the right to
the property comprised in 394/7. During the course of evidence, the
plaintiff would claim that the property comprised in R.S. No.394/7 had
been allotted to his mother in the partition deed effected between Muthu
Gounder and his mother on 07.04.1959. On the other hand, the plaintiff
would claim title to the entire extent comprised in R.S. No.394/7 0.03.30
hectare. The property comprised in R.S. No.394/7 is natham land.
There is no dispute with reference to the same. From the materials
projected on record, it is found that R.S. No.394/7 has been sub divided
and the property in the possession of the defendants had been sub divided
as 394/7A and 7B and they had been granted separate pattas with
reference to the properties in their possession and enjoyment. Now
according to the plaintiff, without serving notice on him, the defendants
have effected the patta in their names by way of re-survey proceedings.
8. Be that as it may, as rightly held by the courts below when
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S.A..No.1357 of 2008
the plaintiff has come forward with the various pleas, as to how he had
acquired the title to the entire extent of the property comprised in R.S.
No.394/7, it is for the plaintiff to establish his claim over the same as put
forth by him. The plaintiff has not established his entitlement to claim
the title to the entire extent in R.S. No.394/7 based on the patta,
particularly when the material placed on record go to show that
R.S.No.394/7 had been sub divided and the defendants have also been
granted patta in respect of R.S. No.394/7A and 7B. In the abovesaid
circumstances, it has to be seen whether the plaintiff has established his
claim of title to the entire extent in R.S. No.394/7 based on the title deed
projected by him.
9. As above pointed out, the plaintiff claims title to the
property comprised in R.S. No.394/7 based on Ex.A4 sale deed. The
parent title deed dated 27.11.1969 of his vendor Marappa Gounder has
been marked as Ex.A3. However, as rightly held by the courts below,
considering the description of the property comprised in Exs.A3 and A4,
the properties described in the abovesaid two sale deeds are found to be
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S.A..No.1357 of 2008
totally inconsistent to each other. Therefore, it is highly doubtful
whether the same property conveyed under Ex.A3 had been conveyed by
Marappa Gounder in favour of the plaintiff under Ex.A4 sale deed. With
reference to the abovesaid inconsistencies qua the properties comprised
in Exs.A3 and A4, no proper explanation is forthcoming on the part of
the plaintiff. When the description of the properties in the abovesaid two
sale deeds differ both in extent, boundaries and when there is no
acceptable material projected on the part of the plaintiff to clear the
doubts, the claim of the plaintiff that he is entitled to claim the entire
extent comprised in R.S. No.394/7 based on the patta, as such, cannot be
accepted and rightly disbelieved by the courts below. Particularly, when
R.S. No.394/7 had been subsequently sub divided and the defendants
have also been granted pattas in respect of the same and when the alleged
title deeds projected by the plaintiff do not evidence his claim of title to
the entire extent in R.S. No.394/7 and moreso, when the plaintiff has not
described R.S. No.394/7 in a clear manner in the plaint schedule,
particularly not mentioned the boundaries within which the said property
is comprised, the courts below are justified in not granting the relief of
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S.A..No.1357 of 2008
declaration and permanent injunction in favour of the plaintiff qua R.S.
No.394/7. Particularly the plaintiff having failed to establish his claim of
title to the entire extent comprised in the abovesaid land and possession
thereof and in such view of the matter, the courts below are found to be
justified in declining the relief of declaration and permanent injunction
sought for by the plaintiff in respect of R.S. No.394/7.
10. Considering the abovesaid factors, no substantial question
of law, as such, is found to be involved in the second appeal.
Resultantly, the second appeal is dismissed. No costs. Consequently,
connected miscellaneous petition, if any, is closed.
11.01.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Additional District Court/Fast Track Court No.IV, Bhavani
2. The Second Additional District Munsif Court, Bhavani.
3. The Section Officer, VR Section, High Court, Madras
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S.A..No.1357 of 2008
4. The State of Tamil Nadu
Rep. by its District Collector
Erode.
5. The Tahsildar
Bhavani Taluk
Bhavani, Erode District
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S.A..No.1357 of 2008
T. RAVINDRAN, J.
bga
S.A.No.1357 of 2008
11.01.2021
https://www.mhc.tn.gov.in/judis/
