Madras High Court
Muthuramalinga Pandian vs Mookaiah (Died) on 29 June, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA No.1938 of 2000
and
CMP No.18803 of 2000
Muthuramalinga Pandian ...Plaintiff/Respondent /
Appellant
Vs.
1.Mookaiah (died) ... Defendant/Respondent/Appellant
2.Parvathi
3.Murugan
4.Ganesan ... Respondents
(Respondents 2 to 4 were brought on record
as LRs of the deceased sole respondent vide
Court order dated 06.01.2020 made in
CMP(MD)Nos.606 to 608 of 2019)
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgement and decree of the Principal District
Judge, Tuticorin and made in A.S No.35 of 1999 modifying the
judgement and decree of the Additional District Munsif, Tiruchendur
and made in O.S No.1263 of 1995.
For Appellant : Mr.V.Nagarajan
For Respondents : Mr.M.P.Senthil for R2 to R4
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JUDGEMENT
The plaintiff in O.S No.1263 of 1995 on the file of the Additional
District Munsif, Tiruchendur is the appellant in this Second Appeal.
The plaintiff filed the said suit seeking the relief of declaration and
consequential injunction. The suit was decreed by the trial court by
judgment and decree dated 31.10.1998. Aggrieved by the same, the
defendant filed A.S No.35 of 1999 before the Principal District Judge,
Tuticorin. By judgment and decree dated 07.08.2000, the first
appellate court partly allowed the appeal. While sustaining the prayer
for declaration, the benefit of injunction was restricted to 20 cents.
Challenging the same and seeking restoration of the trial court's
judgment and decree, this Second Appeal has been filed. The second
appeal was admitted on the following substantial question of law :
“Whether the lower appellate court was correct
in modifying the trial court judgement solely relying
on the report of the Commissioner when the report of
the Commissioner is contrary to the recitals and
boundaries given in the document?.”
2.The learned counsel appearing for the appellant reiterated all
the contentions set out in the memorandum of grounds and called
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upon this Court to answer the substantial question of law in favour of
the appellant and allow this Second Appeal. 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.
3.I carefully considered the rival contentions and went through
the evidence on record. The case of the appellant/plaintiff is that the
property measuring 55 cents comprised in Survey No.143,
Pallakurichi Village belonged one Sattayananda Nadar, He had four
sons, namely, Valasundarapandi Nadar, Rajapandi Nadar, Linga
Nadar and Velliah Nadar. Rajapandi Nadar had passed away and he
left behind his wife Chithiraikani Ammal and sons. A partition took
place among the four branches on 04.08.1979. In the said partition,
Valasundara pandi nadar was given 22 cents while the other three
branches took 11 cents each. Valasundarapandi Nadar sold 11 cents
of land to Velliah Nadar vide Ex.A3 dated 17.12.1984. Velliah Nadar
and Chithirakani Ammal sold the suit property to the plaintiff vide
Ex.A4 dated 09.02.1994. The revenue records namely Exs.A5 and A6
indicate the possession of the plaintiff and the property purchased
vide Ex.A4. The defendant Mookaiah vide Ex.B1 dated 17.12.1984
had purchased 33 cents of land from Valasundarapandi Nadar, Linga
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Nadar and Velliah Nadar. Patta was also issued in favour of the
defendant Mookaiah as evidenced by Ex.B2. The allegation of
Mookaiah is that the plaintiff had committed encroachment.
4.Though the parties have raised rival contentions, the issue
appears to be rather simple. There is no dispute that the original
extent of land was 55 cents of land. The same was partitioned and
subsequently sold. It eventually landed in the hands of the defendant
and the plaintiff. The defendant claimed title over 33 cents. The
plaintiff claims over 22 cents of land. Even a simple arithmetic
calculation would show that it comes to 55 cents overall. In the
present suit, the plaintiff claims declaration and enjoyment only in
respect of 22 cents of land and not more than that. The trial court
rightly granted declaration and injunction in respect of 22 cents. But,
strangely, the first appellate court had chosen to restrict the relief of
injunction to 20 cents of land. The first appellate court made the
reduction based on the Commissioner's report. It is well settled that
the issue of possession will have to be determined only based on the
evidence available and not on the strength of Advocate Commissioner's
report.
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5.Therefore, I answer the substantial question of law in favour of
the appellant. The judgment and decree passed by the first appellate
court is interfered with. The judgment and decree of the trial court is
restored. The second appeal is allowed. No costs. Connected
miscellaneous petition is closed.
29.06.2021
Index : Yes / No
Internet : Yes/ No
skm
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 Additional District Munsif, Tiruchendur.
2.The Principal District Judge, Tuticorin
Copy to :
The Record Keeper,
V.R. Section, Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN, J.
skm
SA No.1938 of 2000
29.06.2021
https://www.mhc.tn.gov.in/judis/
