Kathirmali vs Maruthambal (Died)
2021 Latest Caselaw 14502 Mad

                                                                             S.A.No.1643 of 2001


                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 20.07.2021

                                                     CORAM

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                               S.A.No.1643 of 2001

                1.Kathirmali
                2.Sankar Moopan (Died)
                3.Adakkai
                4.Saravananthan
                5.Sivanathan                                         ... Appellants
                (Appellants 3 to 5 are brought on record as
                LRs of the deceased second appellant vide
                order dated 14.03.2013 made in M.P.(MD)Nos.
                1 to 3 of 2010 in S.A.No.1643 of 2001 by BRJ)


                                                         Vs.

                1.Maruthambal (Died)
                2.Maruthaya Pillai
                3.N.Dhanapal
                4.N.Sakthivel
                5.N.Thilothammal
                6.N.Rajamaheswari                                          ... Respondents
                (Respondents 3 to 6 are brought on record as
                LRs of the deceased first respondent vide order
                dated 23.01.2019 made in C.M.P.(MD)Nos.
                5869 to 5871 of 2018 in S.A.No.1643 of 2001
                by TKJ)

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                                                                                   S.A.No.1643 of 2001


                Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
                against the judgment and decree passed in A.S.No.309 of 1995 on the file of the
                Sub Court, Kulithalai dated 25.01.1999 setting aside the decree and judgment
                passed in O.S.No.16 of 1988 dated 11.01.1992, on the file of the District
                Munsif Court, Musiri.


                                   For Appellants   : Mr.V.Illanchezian

                                   For Respondents : Mr.T.Thirumaran for R2
                                                     Mr.M.Ashok Kumar for R3
                                                     No appearance for R4 to R6


                                                    JUDGEMENT

The legal heirs of the plaintiff in O.S.No.16 of 1988 on the file of the

learned District Munsif Court, Musiri are prosecuting this second appeal. The

said suit was filed by one Valiyan Moopan seeking the relief of declaration and

recovery of possession in respect of the suit property. There is no dispute that

the suit property was originally purchased by Valiyan Moopan vide Ex.A1/sale

deed dated 31.09.1947. Valiyan Moopam is said to have left for Srilanka

immediately thereafter. He returned to India only in the year 1982. He wanted

to resume cultivation of the suit property. That was resisted by the defendants,

the second defendant/Maruthambal in particular. When the plaintiff made

enquiry, it came to be known that the second defendant/Maruthambal had

purchased the suit property vide Ex.B1 dated 25.08.1983 from Vengammal and

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S.A.No.1643 of 2001

Lakhsmi. The vendors in turn traced the title from one Perumal Muthuraja,

who had purchased the suit property from the plaintiff's brother/Chinnathambi

Moopan vide Ex.B2/sale deed dated 12.09.1956. The case of the plaintiff is

that he had given power of attorney in favour of his brother/Chinnathambi

Moopan only to convey 50 cents out of a total extent of 2.25 Acres of the suit

property. The defendants filed written statement controverting the plaint

averments.

2.The plaintiff examined himself as P.W.1 and marked Exs.A1 to A7.

The defendants examined themselves as D.W.1 and D.W.2. The vendor of the

second defendant was examined as D.W.3. Exs.B1 to B24 were marked.

3.The trial Court after a consideration of the evidence on record decreed

the suit vide judgment and decree dated 11.01.1992. Aggrieved by the same,

the second defendant/Maruthambal filed A.S.No.309 of 1995 before the Sub

Court, Kulithalai. The first appellate Court by the impugned judgment and

decree dated 25.01.1999, reversed the decision of the trial Court and allowed

the appeal and dismissed the suit. Questioning the same, this second appeal

came to be filed.

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S.A.No.1643 of 2001

4.The second appeal was admitted on the following substantial question

of law:-

“Whether the first appellate court had properly appreciated the judgment of the trial court relating to limitation and the schedule of property?”

5.The learned counsel 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 restore the decision

of the trial court.

6.Per contra, the learned counsel for the respondents submitted that the

impugned judgment and decree passed by the first appellate court does not call

for any interference.

7.I carefully considered the rival contentions and went through the

evidence on record. There is no dispute that the suit property was purchased by

the original plaintiff/Valiyan Moopan. Valiyan Moopan had fairly conceded

that he had authorised his brother/Chinnathambi Moopan to deal with the

property. The area of controversy is only regarding the extent. According to

the plaintiff, he had given authorisation only to the extent of 50 cents of land

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S.A.No.1643 of 2001

out of 2.25 Acres of the suit property. But neither the plaintiff nor the

defendants produced the power of attorney. The Courts below were really

handicapped. Section 101 of the Evidence Act reads as under:-

“101.Burden of proof

Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

In the case on hand, it was the plaintiff/Valiyan Moopan, who wanted the Court

to give a finding that the sale made by Chinnathambi Moopan in favour of

Perumal Muthuraja vide Ex.B1 in respect of the entire suit property was in

excess of his authority. Therefore, it was he who must have proved the fact.

Since he did not produce the power of attorney, the suit has to necessarily fail.

The first appellate court took note of the fact that the property had changed

hands way back in the year 1957. The suit in question was instituted after a

gap of 36 years. Therefore, the first appellate court was justified in holding

that the claim of the plaintiff clearly stood time barred. I therefore answer the

substantial question of law against the appellant. I do not find any merit in the

second appeal and it stands dismissed. No costs.

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                                                                                          S.A.No.1643 of 2001


                                                                                    20.07.2021
                Index              : Yes / No
                Internet           : Yes/ No
                ias

Note :In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

To:

1.The Subordinate Court, Kulithalai.

2.The District Munsif Court, Musiri.

Copy to:

The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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S.A.No.1643 of 2001

G.R.SWAMINATHAN, J.

ias

S.A.No.1643 of 2001

20.07.2021

https://www.mhc.tn.gov.in/judis/