Madras High Court
Natarajan vs Devaraj Padayachi on 25 June, 2021
S.A.No.1225 of 2009
and M.P.No.1 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.06.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1225 of 2009
and
M.P.No.1 of 2009
Natarajan ...Plaintiff/Appellant/Appellant
Vs.
Devaraj Padayachi ...Defendant/Respondent/Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 29.06.2009
passed in A.S.No.3 of 2008 on the file of the learned Sub Judge,
Panruti, confirming the Judgment and Decree dated 26.11.2007 passed
in O.S.N.379 of 1999 on the file of the learned District Munsif,
Panruti.
For Appellant : Ms.R.Meenal
For Respondent : Mr.Joseph Stalin
for Mr.V.Raghavachari
1/11
https://www.mhc.tn.gov.in/judis/
S.A.No.1225 of 2009
and M.P.No.1 of 2009
JUDGMENT
The unsuccessful plaintiff before the Courts below is the
appellant before this Court. The parties are referred to in the same
array as in the suit.
2.The case of the plaintiff as set out in the Plaint is that the suit
properties belonged to one Asokan, son of Govindasamy Padayachi of
Meliruppu Village. Under a registered Sale Deed dated 18.09.1997,
the plaintiff had purchased the property from the said Asokan. From
the date of purchase, he is in possession and enjoyment of the property
in question. The plaintiff would submit that the total extent of 3.12.0
Hec. in new Survey No.92/1 has been sub divided as 92/1A and 92/1B.
R.S.No.92/1A measured an extent of 0.09.0 Hec. which was acquired
for the purpose of forming the road. The remaining 3.03.0 Hec. in
R.S.No.92/1B was mutated in the name of Govindasamy Padayachi in
the revenue records.
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S.A.No.1225 of 2009
and M.P.No.1 of 2009
3.It is also the case of the plaintiff that R.S.No.92/1B was further
sub divided as 92/1B1 and 92/1B3. After the death of Govindasamy
Padayachi, his son Asokan has succeeded to the property from whom
the plaintiff had purchased the property. It is also the case of the
plaintiff that the defendant who had the property immediately to North
of the suit property started interfering in the peaceful possession and
enjoyment of the property by the plaintiff as he was upset that the
plaintiff's vendor had not sold the property to him. Therefore, the
threat from the defendant continued everyday leaving the plaintiff with
no other option except to approach this Court. Hence, the suit is filed
for declaration and permanent injunction. The suit property has been
described as an extent of 3.12.0 Hec. comprised in Survey No.92/1B1
of Semmedu Village within the specified boundaries.
4.On entering appearance, the defendant had filed Written
Statement inter alia contending that neither the plaintiff's vendor nor
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S.A.No.1225 of 2009
and M.P.No.1 of 2009
his father had any title or interest over the suit property. It is his case
that the suit property originally belonged to one Chinnakutti Ammal
and 3 others who had sold the suit properties to one Chinna Padayachi
under a Sale Deed dated 31.07.1950. The said Chinna Padayachi who
was in possession and enjoyment of the same had died leaving behind
him surviving son Kuppusamy. Kuppusamy died leaving behind him
surviving his sons Ramachandran, Krishnasamy and Amirthalingam.
Out of these, Krishnasamy died leaving behind him surviving his sons
Sekar and Radhakrishnan to succeed to his estate. All the aforesaid
persons had joined together and executed a Sale Deed in respect of the
suit properties in favour of the defendant on 04.01.1999 and since then
the suit property is in the exclusive possession and enjoyment of the
defendant.
5.It is the further case of the defendant that Survey No.403/7 was
allotted Patta No.137 and thereafter, Survey Nos.403/5, 6, 7 and 8 were
consolidated into a single Survey Number and re-numbered as
https://www.mhc.tn.gov.in/judis/
S.A.No.1225 of 2009
and M.P.No.1 of 2009
RS.No.92/1 and a new Patta Number was allotted to the suit properties
in 562. This Joint Patta was in the name of Kaliyaperumal,
Janakiraman and Arachi Govindasamy. By an oversight, the names of
Chinna Padayachi's heirs were included in the Joint Patta. Taking
advantage of the above, the plaintiff has come forward with the suit.
6.The trial Court, namely, the learned District Munsif, Panruti,
had framed the following issues in the suit O.S.No.379 of 1999:
“1/tHf;F brhj;J thjpapd; fpuajhuUf;F
ghj;jpakpy;iy vd;gjhy; thjpf;Fk;
ghj;jpakpy;iy vd;W Twg;gLtJ rhpah>
2/04/01/1999 njjpapl;l fpuag;gj;jpug;go
tHf;F brhj;J gpujpthjpf;F ghj;jpakhdJ
vd;W Twg;gLtJ rhpah>
3/thjpf;F tpsk;g[if ghpfhuKk; mij
xj;j epue;ju cWj;Jf;fl;lis ghpfhuKk;
fpilf;fj;jf;fjh>
4/thjpf;F vd;d ghpfhuk;
https://www.mhc.tn.gov.in/judis/
S.A.No.1225 of 2009
and M.P.No.1 of 2009
tH';fj;jf;fJ>”
7.On the side of the plaintiff, three witnesses were examined and
Ex.A.1 to A6 were marked. Likewise, on the side of the defendant
three witnesses were examined and Ex.B.1 to Ex.B.20 were marked.
Ultimately, the learned Judge taking into account the fact that the
plaintiff was unable to prove the ownership of his predecessors to the
suit property and taking notice of the oral evidence of the plaintiff's
Vendor as P.W.2 came to the conclusion that the plaintiff had not
proved the right over the suit property and hence, the suit was
dismissed.
8.This Judgment was taken up on Appeal to the learned Sub
Judge, Panrutti in A.S.No.3 of 2008. It also appears that the plaintiff
had taken out an application for receiving the additional documents in
I.A.No.20 of 2009. The Appellate Court dismissed the petition for
receiving the additional documents and confirmed the Judgment and
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S.A.No.1225 of 2009
and M.P.No.1 of 2009
Decree of the trial Court. Aggrieved by which, the plaintiff is before
this Court.
9.The Second Appeal was admitted on the following Substantial
Questions of Law framed on 13.07.2020:
“1.Whether in Law the Courts below are right in
dismissing the suit when the appellant's Sale Deed is
anterior in time to that of the respondent? and
2.Whether in Law the Lower Appellate Court was
right in dismissing the appellant's petition for receiving
additional evidence merely on the representation of the
respondent that the suit to which the documents related
was filed at the instigation of the appellant?”
10.Ms.R.Meenal, learned counsel appearing for the appellant
would submit that the Courts below have not appreciated the
documents that have been filed on the side of the appellant to show that
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S.A.No.1225 of 2009
and M.P.No.1 of 2009
the properties belonged to his vendor and also the fact that the revenue
records - Ex.A.3 and Ex.A.4 which were in the name of the plaintiff
would show that the suit property originally belonged to one
Govindasamy from whom his vendor has purchased the property.
11.The trial Court has glossed over this fact and the same has
also not been considered by the Appellate Court. The application to
file additional documents has also been rejected, thereby, depriving the
plaintiff his right to prove his case. The application for receiving the
additional documents was rejected on the ground that the documents
that are sought to be filed are sought to be filed are subsequent to the
suit. However, the learned Judge has failed to appreciate the said
documents would go a long way to prove the case of the appellants.
12.Heard the learned counsels appearing on either side and
perused the papers.
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S.A.No.1225 of 2009
and M.P.No.1 of 2009
13.The entire dispute revolves around the identity of the
predecessors in title Govindasamy. The case of the defendant is that
Govindasamy referred to in the Chitta and Adangal is one Arachi
Govindasamy and not Govindasamy, who has been shown as the father
of Asokan, vendor of the plaintiff. The trial Court in Paragraph 30 has
traced the title of the defendant to the suit property. The Courts below
have also taken note of the fact that under Ex.B.16, partition had been
effected in the family of the plaintiff's vendor. Further, this partition
took place on 29.07.1975, however, the suit property is not shown in
the partition. If really, the suit property belonged to Govindasamy then
under Ex.B.16, his legal representatives would have not definitely
partitioned the property. That apart, the defendants have let in
convincing the evidence to show that Govindasamy referred to in the
Chitta and Adangal is one Arachi Govindasamy and not Govindasamy,
the father of the plaintiff's vendor. Both the Courts below have in great
details appreciated the evidence on record. Once it is held that the
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S.A.No.1225 of 2009
and M.P.No.1 of 2009
properties belong to the defendant's vendor, it is immaterial as to
whether the Sale Deed is anterior or posterior to the Sale Deed of the
defendant. Therefore, the Questions of Law is answered against the
appellant. The additional documents that are sought to be produced are
subsequent to the Judgment in O.S.No.379 of 1999. Therefore, no
exception can be taken to the Judgment and Decree under Appeal.
In fine, the Second Appeal is dismissed. Considering the
circumstances, there shall be no order as to costs. Consequently,
connected Miscellaneous Petition is closed.
25.06.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Sub Judge, Panruti.
2.The District Munsif, Panruti.
https://www.mhc.tn.gov.in/judis/
S.A.No.1225 of 2009
and M.P.No.1 of 2009
P.T. ASHA, J,
mps
S.A.No.1225 of 2009
and M.P.No.1 of 2009
25.06.2021
https://www.mhc.tn.gov.in/judis/
