Madras High Court
Arumugam vs The State Of Tamil Nadu on 5 July, 2021
S.A.(MD)No.527 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.527 of 2002
1.Arumugam
2.Chinnakannu (died)
3.Anburaja ... Appellants/ Appellants / Defendants 4 to 6
4.Thirumoorthy
5.Indira Jothi
6.Padmavathi
7.Illayaraja
8.Nallamani
9.Jayanthirani
(appellants 4 to 9 are brough on record as Lrs
of the second appellant as per order dated 07.12.2015)
... Appellants
-Vs-
1.The State of Tamil Nadu,
Rep. By the District Collector,
Tiruchirappalli.
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S.A.(MD)No.527 of 2002
2.The Assistant Director of Survey and Land records
at District Survey, Thiruchirappalli.
3.The Settlement Officer,
Dindigul Road, Manapparrai.
4.V.Perumal (died) ... Plaintiff, Defendants 1 to 3/ Respondents/
Respondents
5.Thilagavathy
6.P.Nagarajan
7.D.Masanna Venkatesan
8.Pangajapriya
9.Gokilarani
10.P.Jeya Kumar
11.P.Parasuram
12.K.Rajeswari
13.P.Senthil Kumar
( Respondents 5 to 13 brought on record
as Lrs of fourth respondent as per order
dated 07.12.2015) ... Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 12.11.2001 in A.S.75 of 2000
on the file of the Second Additional District Court, Tiruchirappalli,
dismissing the Appeal against the judgment and decree dated 20.12.1999 in
O.S.No.15 of 1995 on the file of the District Munsif Court, Manapparai.
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S.A.(MD)No.527 of 2002
For Appellant : Mr.K.Govindarajan
For R1 to R3 : Mr.R.Ragavendran
Government Advocate
For R5 to R13 : Mr.Raguvaran Gopalan
JUDGMENT
The contesting defendants in O.S.No.15 of 1995 on the file of the
District Munsif Court, Manapparai are the appellants in this second appeal.
2. The suit was filed by Thiru.V.Perumal seeking the relief of
declaration, permanent injunction, mandatory injunction and recovery of
possession in respect of the suit properties which are five in number.
The plaintiff examined himself as P.W.1 and marked Ex.A1 to Ex.A25.
On the side of the defendants, as many as three witnesses were examined.
Ex.B1 to Ex.B14 were marked. An advocate commissioner was appointed
and his report and plan were marked as Court Ex.1 and 2. By the judgment
and decree dated 20.12.1999, the suit was decreed in respect of Item Nos.1
to 4. It was dismissed as regards Item No.5. Aggrieved by the same, the
contesting defendants filed A.S.No.75 of 2000 before the second Additional
District Judge, Tiruchirappalli. Aggrieved by the dismissal as regards Item
No.5, the plaintiff / Perumal filed cross-objection. By the impugned
Judgment and decree dated 12.11.2001, the appeal as well as the cross
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S.A.(MD)No.527 of 2002
objection were dismissed. Challenging the same, the contesting defendants
filed this second appeal.
3.The second appeal was admitted on the following substantial
questions of law:-
“Whether the judgment and decree of the Courts below are
sustainable in law as the Courts below have not appreciated the
relevant evidence available on record and not following the relevant
provisions of law applicable to the issue raised.”
4. The learned counsel appearing for the appellants reiterated the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial question of law in favour of the appellants
and set aside the impugned judgment and decree and dismiss the suit.
5. Per contra, the learned counsel appearing for the contesting
respondents would submit that the plaintiff traced his title from his father
Venkudaswamy Naidu who purchased the property vide Ex.A1 to Ex.A3.
He also would point out that the lands purchased vide Ex.A1 to Ex.A3 are
contiguous and that his father Venkudaswamy Naidu has been in possession
of the same right from the date of purchase. The said property was
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S.A.(MD)No.527 of 2002
bequeathed to the plaintiff vide Ex.A12. The validity of Ex.A12 was
upheld in various court proceedings. He also pointed out that the plaintiff
had been issued with patta Ex.A13. The plaintiff had also been paying kist
for the said items as evidenced by Ex.A4 to Ex.A9. The counsel would
further point out that all these documents were in existence even prior to
filing of the suit. But during the pendency of the suit, some time in 1997,
the contesting defendant trespassed into the suit property. Therefore, the
plaint was suitably amended to include the prayer for recovery of
possession. Even though according to the learned counsel for the
contesting respondents, the defendants claimed to be the owner of the suit
properties by inheritance, the written statement is bereft of particulars.
However, during trial, certain documents were introduced. But there is no
foundation for those documents in the pleadings. The learned counsel
therefore called upon this Court to ignore Ex.B11 and Ex.B13. The learned
counsel appearing for the respondents submitted that the impugned
judgment and decree do not call for any interference.
6. I carefully considered the rival contentions and went through the
evidence on record. During the pendency of this appeal, the plaintiff/
Perumal had passed away and his legal heirs namely R5 to R13 have been
brought on record. Though the suit schedule contained five items, it is now
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S.A.(MD)No.527 of 2002
evident that the fifth item is a pathway and therefore, the contest is confined
only to Item Nos.1 to 4. The plaintiff had not filed any appeal challenging
the dismissal of the cross objection.
7. The specific case of the plaintiff is that the suit items 1 to 4 form
part of old Survey No.240/B and that they measure an extent of two acres
and that they were purchased under a registered sale deed dated 24.08.1925
from one Venkittammal for consideration. This document was marked as
Ex.A1 by the plaintiff. The plaintiff having come out with a very specific
case that his title is derived under Ex.A1 in respect of the suit items 1 to 4
was obliged to establish the same.
8. I bear in mind that in the decision reported in (1999) 4 SCC 350
( Arumugham (dead) by legal heirs and others Vs. Sundarambal), it was
held that the question of burden of proof would not be relevant, when both
sides have adduced evidence. It would be relevant only if a person on
whom the burden of proof lay failed to adduce any evidence altogether.
In (Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P.Temple
and another) (2003) 8 SCC 752, it was held that in a civil case, the
plaintiff cannot be expected to prove his title beyond any reasonable doubt.
A high decree of probability lending assurance of the availability of title
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S.A.(MD)No.527 of 2002
with him would be enough to shift the onus on the defendant and if the
defendant does not succeed in shifting back the onus, the plaintiff's burden
of proof can safely be deemed to have been discharged.
9. The only question with which I am now concerned is whether the
suit properties can be said to be covered by Ex.A1. Ex.A1 is a registered
sale deed executed by Venkittammal in favour of Venkudaswamy Naidu.
There is no dispute that Venkudaswamy Naidu is the father of the plaintiff
V.Perumal. In the schedule of property, the following description is found:-
“jpUr;rp b];bhpf;l; Fspj;jiy jhYfh kzg;ghiw
rg;.b];bhpf;l; nrtYhh; fpuhkk; ,dhk; GQ;ir hP rh;Nt 240 ePh;+ B
nyl;lh; jpl;lk; Vf;fh; 9.49y;; fPo;Gwk; Vf;fh; 2.00 epyKk;;
mjpYs;s khtil kutilfSk; jhq;fSf;F fpiuak;.”
10. The learned counsel for the contesting respondents contended that
the survey number mentioned should be understood as referring to S.No.
240B and not Survey No.240D. To find out which survey number is exactly
denoted by Ex.A1, it is necessary to have a look at Ex.B12. Ex.B12 is the
Re-survey and Settlement Register of the Village of Sivalur. R.S.Nos.240A
to E are mentioned in the said Ex.B12 & Ex.B4. Ex.B4 is the village
settlement 'A register' which also co-relates the old survey numbers with the
present survey numbers. There is no dispute that the suit properties are
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S.A.(MD)No.527 of 2002
situated in Survey Nos.717/5, 717/6, 717/7 and 717/8 in Sivalur Village,
Manapparai Taluk.
11. As per Ex.B12, the total extent of survey No.240A was 4 acres 56
cents; 240B was 73 acres; 240C was 22 acres and 240D was 9 acres and
49 cents. In Ex.A1, it is mentioned that two acres are conveyed to
Venkudaswamy Naidu out of 9 acres and 49 cents. This single
circumstance is sufficient to prove that Ex.A1 was concerned only with
240D and not 240B.
12. The entire case of the plaintiff is anchored on Ex.A1. The
argument put forth was that since the english letter had been expressed in
tamil, it should be understood as referring to Survey No.240 B and not
Survey No.240 D. After perusing Ex.B12, I am satisfied that Ex.A1
pertains only to 240D and not 240B. Therefore, I have to necessarily
interfere with the judgment and decree passed by the Courts below. Of-
course, the learned counsel appearing for the respondent would submit that
the long possession of the plaintiff has been amply established by the
various revenue records. In a case of this nature, it would be most unsafe to
go by revenue documents. I cannot lose sight of the fact that what has been
filed is a suit for recovery of possession and not for injunction. Of-course,
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S.A.(MD)No.527 of 2002
the learned counsel for the respondents would submit that the original
prayer was only for injunction and since during the pendency of the suit,
trespass was committed by the contesting defendants, the prayer had to be
amended. This does not impress me.
13. From a reading of the testimony of P.W.1, I can come to the
conclusion that the defendants have always been in possession of the suit
property. I answer the substantial question of law in favour of the
appellants.
14. In this view of the matter, the judgment and decree passed by the
Courts below are set aside. The second appeal is allowed. No costs.
28.06.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Second Additional District Court, Tiruchirappalli.
2.The District Munsif Court, Manapparai.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.527 of 2002
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.527 of 2002
05.07.2021
https://www.mhc.tn.gov.in/judis/
