Madras High Court
N.Jeya Ambiga vs G.Muthukrishnan on 8 March, 2021
S.A.(MD)No.585 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.585 of 2020
and
C.M.P.(MD)No.6274 of 2020
N.Jeya Ambiga ... Appellant
versus
1. G.Muthukrishnan
2. Selvamathi ... Respondents
Second Appeal filed under Section 100, r/w. Section 105 of C.P.C.,
against the Judgment and decree dated 20.08.2019 passed in A.S.No.77 of
2017 & Cross Appeal No.77 of 2017 on the file of the learned Principal Sub
Court, Nagercoil, confirming the Judgment and decree dated 24.03.2017
passed in O.S.No.528 of 2011 on the file of the learned 1st Additional District
Munsif Court, Nagercoil.
For Appellant : Mr.M.P.Senthil
For Respondents : Mr.H.Thayumanasamy for R1
JUDGMENT
The plaintiff in O.S.No.528 of 2011 is on appeal. The challenge is
to the Judgment and Decree of the Appellate Court made in A.S.No.77 of 2017
dated 20.08.2009 in and by which, the learned Principal Subordinate Judge,
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S.A.(MD)No.585 of 2020
Nagercoil, confirmed the Judgment and Decree of the trial Court in O.S.No.
528 of 2011 dated 24.03.2017.
2. The plaintiff sought for declaration of title and recovery of
possession after removal of superstructure put up by the defendants in the suit
property. The suit property was shown to be 25 cents of land in Survey
No.673/12. According to the plaintiff, the suit property belonged to one
Ratnasamy, who purchased it under a sale deed dated 22.10.1960 from one
Duraisamy Nadar. On the death of the said Ratnasamy on 07.04.1978, the
property devolved on his heirs and at a partition that took place on 10.04.2002
between the heirs of Ratnasamy and the suit property and other properties
were allotted to the plaintiff's husband. The mother of the plaintiff's husband
had also executed a settlement deed in respect of survey No.673/9 in favour of
the plaintiff's husband on 22.05.2008. The plaintiff's husband had in turn
executed a settlement deed in favour of the plaintiff on 05.03.2009. Therefore,
according to the plaintiff, she was entitled to the suit property. She would
further plead that the defendants, claiming that they purchased the suit
property, vide documents dated 05.07.2004 and 06.07.2004, from certain
persons, who have no title over the property, have trespassed upon the
property and put up certain constructions. Therefore, the plaintiff sought for a
declaration of her title and for recovery of possession, after removal of
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S.A.(MD)No.585 of 2020
superstructure.
3. The suit was resisted by the defendants, contending that a larger
extent of 91 cents in old survey No.2946 belonged to one Duraisamy Nadar.
The said Duraisamy Nadar had sold 25 cents to the plaintiff's father-in-law
Rathinasamy and his brother Thangappan under a sale deed dated 22.10.1960.
The remaining 65 cents was sold by Duraisamy Nadar in favour of the
defendants' predecessor in interest. At the time of re-survey, 25 cents of land
purchased by the plaintiff's father-in-law was assigned as Survey No.673/2 and
the remaining land purchased by the defendants' predecessor in interest were
assigned as Survey No.673/12. It is also the contention of the defendants that
even during the life time of Duraisamy Nadar, a granite compound wall was
constructed demarcating the portion sold to the plaintiff's predecessor in
interest on the western side and the portion retained by him on eastern side.
Therefore, according to the defendants, the plaintiff has no right over any
property in Survey No.673/12. The revenue records in respect of Survey No.
673/12 have been created by the plaintiff by misusing the partition deed and
settlement deed, which are the documents between the plaintiff and her family
members. According to the defendants, the recitals therein would not bind the
defendants. Therefore, the plaintiff cannot claim title to any portion of land in
Survey No.673/12.
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S.A.(MD)No.585 of 2020
4. At trial, the plaintiff's husband was examined as P.W.1 and
Exs.A1 to A11 were marked. The first defendant Mr.K.Muthukrishnan was
examined as D.W.1. The common predecessor in interest of the plaintiff as
well as the defendants, namely, Duraisamy Nadar was examined as D.W.2.
Exs.B1 to B10 were marked.
5. The trial Court, upon consideration of the evidence, concluded
that old Survey No.2946 was subdivided into new Survey Nos.673/2 and
673/12. While the new Survey No.673/2 was assigned to 25 cents of land
purchased by the plaintiff's predecessor-in-interest, the land purchased by the
defendants under the sale deed dated 05.07.2004 and 06.07.2004, was
assigned as Survey No.673/12. This finding of the trial Court is supported by
the documentary evidence in the form of SLR Register which was produced as
Ex.B1. The claim of the plaintiff, that certain land in Survey No.2947
purchased by her predecessor-in-interest was also assigned Survey No.673/2
and included therein, therefore, she is entitled to a larger extent than 25 cents
in Survey No. 673/2 as well as in Survey No.673/12, was rejected by the trial
Court for lack of evidence. The existence of demarcating wall was also taken
as a circumstance that would probablize the case of the defendants. On the
above conclusion, the learned trial Judge dismissed the suit, though it recorded
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S.A.(MD)No.585 of 2020
a finding that the plaintiff is entitled to some land in Survey No.673/2. The
trial Court also recorded a finding that the granite wall that separated the
properties was more than 50 years old. The trial Court, however, answered the
issue relating to the limitation in favour of the plaintiff. Aggrieved by the said
Judgment and Decree, the plaintiff preferred an appeal in A.S.No.77 of 2017
and the defendants questioned the findings relating to the limitation by way of
Cross Objection.
6. The Lower Appellate Court upon reconsideration of evidence on
record, concurred with the findings of the trial Court and dismissed the appeal.
As regards the Cross objection, the Lower Appellate Court found that the suit
filed by the plaintiff for recovery of possession is barred by limitation,
inasmuch as the compound wall was in existence for more than 50 years.
Three applications were filed to let in additional evidence before the Lower
Appellate Court. The Lower Appellate Court rejected the applications on the
ground that the plaintiff has not satisfied the requirements of the Order 41
Rule 27 C.P.C. Aggrieved, the plaintiff has come up with this second appeal.
7. I have heard Mr.M.P.Senthil, learned counsel for the appellant
and Mr.H.Thayumanaswamy, learned counsel for the first respondent.
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S.A.(MD)No.585 of 2020
8. A Commissioner was appointed by this Court and the
Commissioner has also filed his report and plan.
9. Mr.M.P.Senthil, learned counsel for the appellant would
vehemently contend that the Courts below have not adverted the fact that a
portion of land retained by Duraisamy Nadar, after the sale in favour of the
plaintiff's predecessor-in-interest, was acquired or surrendered for the purpose
of widening the road situated on the East of Duraisamy Nadar's property.
Therefore, Duraisamy Nadar had no title to convey 65 cents of land in Survey
No.673/12. According to the learned counsel, after having lost some land on
the East of the property, the defendants, taking advantage of the sale of a larger
extent of land, had encroached upon the property in Survey No.673/2.
Therefore, according to the learned counsel for the appellant, the plaintiff
would be entitled to 25 cents of land in Old Survey No.2946, which is equated
with new survey Nos.673/2 and 673/12. The learned counsel would further
contend that the plaintiff's predecessor-in-interest purchased the property on
the West of survey No.673/2 situated in old survey No.2947. The documents
that were sought to be introduced in evidence by the plaintiff in the appellate
stage, to show that the defendants had in fact encroached upon the property
belonging to the plaintiff.
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S.A.(MD)No.585 of 2020
10. I have considered the submissions of the learned counsel for the
plaintiff/appellant.
11. I am unable to agree with the contentions of the learned counsel
for the appellant. The fact, that Duraisamy Nadar owned 91 cents in Survey
No.2946, is admitted. The fact that the plaintiff's predecessor-in-interest
purchased only an extent of 25 cents from Duraisamy Nadar is also admitted.
From Ex.B1-a copy of SLR register, it is seen that Survey No.2746 was
assigned as new Survey No.673/2 and 12. While Survey No.673/2 measured
about 25 cents, survey No.673/12 measured about 66 cents. Therefore, the
claim of the plaintiff, that certain land in old Survey No.2947 was included in
Survey No.673/2 and therefore, Survey No.673/2 was of larger extent, has not
been established by any tangible evidence. Moreover, the plaintiff has chosen
to describe the suit property, namely, the entire extent of 25 cents, situated in
Survey No.673/12, which is factually incorrect.
12. The Courts below have analysed the evidence and concluded
that the plaintiff has not established her claim that she is entitled to some land
in Survey No.673/12 by virtue of purchase made by her predecessor-in-interest
under Ex.A1 in the year 1960. As regards the additional evidence that was
sought to be let in, the plaintiff wants to rely upon the boundary recitals in
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S.A.(MD)No.585 of 2020
those documents to show that her family owns certain land on the West also.
If the plaintiff could not establish that at least a part of land in Survey No.2947
was included in Survey No.673/2 at the time of re-survey, the plaintiff cannot
succeed by showing that she was entitled to some portion on the West of
Survey No.673/2.
13. A Commissioner appointed by this Court and he also found that
the plaintiff is in possession of 23.290 cents of land in Survey No.673/2. The
Commissioner also found that the defendants, who have purchased 65 cents
under Exs.B3 and B4 are in possession of only 61.605 cents, which is less than
the extent what was purchased by them. The Commissioner also observed the
physical features, particularly, the existence of a granite compound wall right
through A to D, the western boundary of Survey No.673/12 and eastern
boundary of Survey No.673/2. D.W.2, the vendor of the defendants, namely,
Duraisamy Nadar, has also deposed the fact that the wall in question was
constructed even during the life time of the father-in-law of the plaintiff,
namely, Ratnasamy. Admittedly, the father-in-law of the plaintiff Ratnasamy
died in the year 1987. Even assuming that there was a trespass prior to the year
1987, the plaintiff has come to the Court only in the year 2011 seeking
recovery of possession.
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S.A.(MD)No.585 of 2020
14. It is incumbent on the plaintiff, who seeks recovery of
possession, to show that she was in possession of the land 12 years prior to the
suit. In the absence of such evidence, the Appellate Court was right in
concluding that the suit for recovery of possession is also barred by limitation.
Therefore, I do not see any question of law much less the substantial question
of law in order to enable me to entertain the appeal. The Second Appeal,
therefore, fails and it is accordingly dismissed. No costs. Consequently,
miscellaneous petition is closed.
08.03.2021
Index : Yes / No
Internet : Yes / No
ogy
To
1. The Principal Sub Court,
Nagercoil
2. The 1st Additional District Munsif Court,
Nagercoil.
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S.A.(MD)No.585 of 2020
R.SUBRAMANIAN, J.
ogy
S.A.(MD)No.585 of 2020
08.03.2021
http://www.judis.nic.in
