Madras High Court
R. Appal Raju vs Bakthavatchala Chetty (Died) on 27 July, 2021
S.A.No.1511 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1511 of 2008
and
M.P.No.1 of 2014
R. Appal Raju ...Appellant/Respondent/2nd plaintiff
Vs.
1.Bakthavatchala Chetty (died)
2.V.Govindarajulu Chetty ...Respondents/Appellants/Defendants
3.Sudhamani
4.Kothandapani
5.Devakar
6.Savithri
7.Rajagopal
8.Shanmugam
9.Hemanthkumar ...Respondents
[Respondents 3 to 9 brought on record the legal representatives of the
deceased 1st respondent vide order of this Court dated 29.11.2019
made in C.M.P.Nos.24060, 24063 and 24068 of 2019 in S.A.No.1511
of 2008 by AQJ)
1/14
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S.A.No.1511 of 2008
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and decree dated 10.12.2007
passed in A.S.No.58 of 2006 on the file of the learned Subordinate
Judge, Thiruvallur, reversing the Judgment and Decree dated
15.03.2006 passed in O.S.No.533 of 2001 on the file of the learned
District Munsif, Pallipattu.
For Appellant : Mr.A. Prabhakaran
For Respondents : Mr.A. Palaniappan
for R2 to R9
R1 - died
JUDGMENT
The 2nd plaintiff is the appellant before this Court. The Second
Appeal arises against the dismissal of A.S.No.58 of 2006 by the
learned Subordinate Judge, Thiruvallur, reversing the Judgment and
Decree in O.S.No.533 of 2001 of the learned District Munsif,
Pallipattu.
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S.A.No.1511 of 2008
2.The parties are referred to in the same litigative status as before
the trial Court.
3.The facts in brief which has culminated for filing of the Second
Appeal are as follows:
The plaintiffs have filed a suit for declaration of their right, title
and interest to the suit property and for a consequential injunction
restraining the defendants, their men, agents and servants from in any
manner interfering with the plaintiffs peaceful possession and
enjoyment of the schedule mentioned property.
4.The property in dispute is described as follows:
SCHEDULE OF PROPERTY
"Thiruvallur District, Pallipattu Sub Reg. Dt.,
Pallipattu Taluk, in Nochili Village account:
S.No.138/3 in this a dilapidated well, well mound,
Kabilabari and other standing trees thereon with
S.C.No.71 measuring about 0.06 cent bounded to the East
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S.A.No.1511 of 2008
West, South and North by the plaintiffs land."
5.The 1st plaintiff has purchased the ½ share in the suit well along
with other landed properties for a valuable consideration of Rs.800/-
from one Krishnama Raju and another under a registered Sale Deed
dated 11.12.1957. Likewise, the 2nd plaintiff had purchased the lands
in Survey No.138/3 measuring an extent of 1 acre out of 1.70 acres
together with 1/2 share in the suit well from the owners Venkat Raju
and others under a registered Sale Deed dated 01.09.1980 for a
valuable consideration of Rs.21,800/-.
6.The plaintiffs would submit that they are the absolute owners
of the suit well and that no one in any manner has got a right to the
same. The suit property was in dilapidated conditions and it was in
disuse and the plaintiff has raised several trees in the property and
around the well. In the month of April 1998, the plaintiffs decided to
remove the trees and clear the shrubs around the suit well at which
point of time the defendants obstructed the plaintiffs act. This
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S.A.No.1511 of 2008
constrained the plaintiffs to issue a Legal Notice dated 16.04.1998
informing the defendants that they have no right over the suit well.
The defendants had received the said notice and sent a reply containing
false allegations. Thereafter, the defendants attempted to cut the
standing trees in the suit property on 20.08.1999, however, the plaintiff
has resisted the said action. Pending the suit, the 1 st plaintiff died on
29.08.2001 leaving behind her surviving the 2nd plaintiff and the 3rd
plaintiff as her legal heirs.
7.The 1st defendant had filed a Written Statement which was
adopted by the 2nd defendant in which the defendants would contend
that they are entitled to a 1/4th share in the suit well. It is their case that
their junior paternal uncle Krishnama Chetty had purchased the 1/4th
share in the suit property under a registered Sale Deed dated
20.12.1957 from the vendor namely, Gengadharam Achari. The said
Krishnama Chetty was in possession and enjoyment of the property till
his death. Likewise, the defendant's elder brother Pandurangiah
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S.A.No.1511 of 2008
Chetty had purchased a 1/8th share in the suit well from one Errabbaraju
@ Narasharaju under a registered Sale Deed dated 25.03.1973.
However, by an oversight Survey Number has been given as 138/4
instead of 138/3.
8.The defendants would submit that they are in joint possession
and enjoyment of the suit well. UDR Patta bearing No.665 has been
issued in the name of the plaintiffs, the 2nd defendant and
Krishnamaraju. Therefore, the plaintiffs are not entitled to a declaration
that they are the absolute owners of the suit well and the consequential
injunction.
9.The parties had gone to trial on the following issues framed by
the learned District Munsif, Pallipattu:
“(1)Whether the plaintiffs or the defendants have
got right and title to the suit property?
(2)Whether the plaintiffs are entitled for the
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S.A.No.1511 of 2008
Decree as prayed?
(3)To what other reliefs the parties entitle for?"
10.The 2nd plaintiff had examined himself as P.W.1 and one
Narayana Raju was examined as PW2 and Ex.A.1 to Ex.A.41 were
marked. The 1st defendant examined himself as D.W.1 and Ex.B.1 to
Ex.B.11 were marked. The 2nd defendant was examined as DW3 and
Ex.C.1 to Ex.C.11 were marked.
11.The learned District Munsif, Pallipattu took note of the
evidence of the defendants that there were two wells situate in the suit
property one on the Western side and another on the Eastern side which
though initially denied by the plaintiffs was subsequently admitted to
by P.W.1, the 2nd plaintiff during the cross examination. The learned
Judge chose to disbelieve Ex.B.1 and Ex.B.2 on the ground that Ex.B.1
refers to a paimash number for which the corresponding survey number
has not provided and further they have also not provided the correlation
Certificate. Ex.B.2 was disbelieved as it did not relate to the suit
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S.A.No.1511 of 2008
property i.e., Survey No.138/4 and the Ex.B.2 is of the year 1973 and
no steps have been taken to correct the same.
12.The learned Judge also chosen to ignore the joint patta granted
under Ex.B.3 and Ex.B.4 and consequently, decreed the suit.
Aggrieved by the same, the defendants had filed A.S.No.58 of 2006 on
the file of the learned Subordinate Judge, Thiruvallur. The learned
Judge relying on the admission of the 2nd plaintiff as P.W.1 regarding
the joint right of the defendants to the suit property and also
considering Ex.B.1 and Ex.B.2 allowed the appeal and dismissed the
suit. Challenging the same, the 2nd plaintiff is before this Court.
13.The Second Appeal was admitted on the following Substantial
Questions of Law by orders of this Court dated 10.12.2008:
“(1)Whether the findings rendered by the First
Appellate Court that the oral evidence of the parties
will prevail over the documentary evidence?
(2)Whether the inference drawn by the First
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S.A.No.1511 of 2008
Appellate Court in ascertaining the right of the
defendants by virtue of revenue documents is
sustainable in Law?"
14.Heard the learned counsels appearing on either side and
perused the papers.
15.The 2nd plaintiff as P.W.1 has made the following statements
in his Cross examination:
"///jhth brhj;J rh;nt vz;/138-3 MFk;/
me;j rh;nt vz;zpy; bkhj;j tp!;jPuzk; 1/70
brz;l; MFk;/ jhth brhj;Jf;F bjw;fpy;
cs;s vd;Dila epyj;jpw;F gf;fj;jpy;
gpujpthjpfspd; epyk; cs;sJ/ rh;nt vz;/138-
3y; mjhtJ (jhth brhj;J) fpHf;Fg; gf;fk;
xU fpzWk; nkw;Fg; gf;fk; xU fpzWk;
,Uf;fpwJ vd;why; rhpjhd;/ rh;nt vz;/138-
3y; nkw;F gf;fk; ,Ue;j fpzW jw;nghJ
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S.A.No.1511 of 2008
,y;iy/ me;j ,lj;jpy; MH;Jisf;fpzW
mikf;fg;gl;L mjpy; jhd; kpd;dpizg;g[ vz;
23 Mfpait ,Uf;fpwJ/ kpd;dpizg;g[
vz;/71I jd; bgaUf;F ,d;Dk; khw;wk;
bra;atpy;iy/ me;j kpd;dpizg;g[ epue;jukhf
Jz;of;fg;gl;L tpl;lJ/ me;j
MH;Jisf;fpzw;wpy; jhd; kpd;dpizg;g[ vz;/23
vd; jhahh; bgahpy; bgwg;gl;L ePhg
; ;ghrdk;
bra;ag;gLfpwJ vd;why; rhpjhd;/ rh;nt
vz;138-3y; fPH;gg
; [wk; cs;s fpzW ghjp J}h;e;J
tpl;lepiyapy; jz;zPh; ,y;yhky; ,Uf;fpwJ/
jhth brhj;jpy; nkw;go J}h;e;J ngha[s;s
fpzw;wpy; K:ykhfj;jhd; gpujpthjpfs; ,e;j
epy';fSf;F Muk;gj;jpy; ePh; gha;r;rg;gl;L
te;jJ/ jhth brhj;jpy; nkw;go g[wkhf
cs;s fpzW vdJ ghl;ldhUf;F ghj;jpag;gl;L
gpd;dh; vdJ je;ijapd; ghfj;jpw;F
bfhLf;fg;gl;ljhFk;/ nkw;go nkw;Fg[wKs;s
fpzW vdf;F ghj;jpag;gl;lJ/ mjw;fhd
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S.A.No.1511 of 2008
Mtz';fs; jhf;fy; bra;fpnwhk;/ uhkhuh$%
,we;j gpd;dh; mtUf;Fz;lhd 1-8 ghfj;ij
(jhthtpy; brhy;yg;gl;Ls;s fpzW)
gpujpthjpfspd; K:j;j rnfhjuuhd
ghz;Lu';fuh$%f;F fpuak; bfhLj;jpUf;fpwhh;
vd;why; me;j tptuk; bjhpa[k/; nkw;go
fpuag;gj;jpuj;jpy; rh;nt vz; 138-3 vd;gjw;F
gjpyhf rh;nt vz;/138-4 vd;W jtWjyhf
fpua Mtzj;jpy; Fwpg;gpl;l tptuk; bjhpa[k;/
jhth brhj;Jf;F Muk;gj;jpy; gl;lh vz; 665
mJ gpd;dpl;L 300 vd khw;wg;gl;Ls;sJ/
mjw;fhf 665 gl;lh vd;W 1984nyna 3 ngh;
nghpy; 1) ,w;ej fd;dpak;khs; 2)mg;gy;uh$
(2k; thjp) 3)nfhtpe;juh$; brl;oahh; (2k;
gpujpthjp) fpUc;&zuh$% MfpnahUf;F rh;nt
vz; 138-3y; 0/69/0 bcwf;nlh; 1 Vf; 70
brz;l; bfhLf;fg;gl;Ls;sJ vd;gij gp/rh/M/3
Kd;itj;J mwpe;J bfhs;s KofpwJ/
mjw;F gpd;dpl;L gp/rh/M/4 06/09/2005y; gl;lh
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S.A.No.1511 of 2008
vz;/300 vd khw;wk; bra;ag;gl;l gpd;dh;
gs;spg;gl;L jiyikaplj;J Jiz
tl;lhl;rpauhy; 3 ngh; bgahpy; jhd;
bfhLf;fg;gl;Ls;sJ/ fd;dpak;khs; (1Mk;
gpujpthjp) mg;gy;uh$% (2k; thjp)
nfhtpe;juh$% brl;o (2k; gpujpthjp)
Mfpnahhpd; bgahpy; gl;lh
bfhLf;fg;gl;Ls;sJ/”
16.In the light of such a categoric statement by the plaintiffs, it is
clear that the suit well belongs to the plaintiffs as well as the
defendants. PW1 has further admitted that paimash No.2121
correlates with S.No.1413. In his cross examination, he would state as
follows :
“///jhth brhj;jpy; fpHf;Fg;g[wKs;s
fpzw;wpypUe;J jhd; gpujpthjpfs; epyj;jpw;F
bry;fpw giHa fhy;tha; jw;nghJk;
,Uf;fpwJ vd;why; rhpjhd; rh;nt vz;/138-
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S.A.No.1511 of 2008
3f;F ,izahd igkhc&; vz;/2121 MFk;/"
Therefore, in the light of the above categoric evidence, the
Substantial Questions of Law are answered against the
appellant/plaintiffs and the Second Appeal is dismissed. The Judgment
and Decree in A.S.No.58 of 2006 on the file of the learned Subordinate
Judge, Thiruvallur is confirmed. There shall be no order as to costs.
Consequently, connected Miscellaneous Petition is closed.
27.07.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Subordinate Judge,
Thiruvallur.
2.The District Munsif,
Pallipattu.
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S.A.No.1511 of 2008
P.T. ASHA, J,
mps
S.A.No.1511 of 2008
and
M.P.No.1 of 2014
27.07.2021
https://www.mhc.tn.gov.in/judis/
