Madras High Court
Nagarajan vs Bojarajan on 8 March, 2021
S.A.(MD)No.54 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.54 of 2021
and
C.M.P.(MD)No.576 of 2021
Nagarajan ... Appellant/Appellant/
Plaintiff
versus
Bojarajan ... Respondent/Respondent/
Defendant
Second Appeal filed under Section 100 of C.P.C., against the
Judgment and Decree dated 28.02.2020 passed in A.S.No.31 of 2016 on the
file of the learned Principal Sub Judge, Dindigul, confirming the Judgment and
Decree dated 29.06.2016 passed in O.S.No.465 of 2010 on the file of the
Principal District Munsif Court, Dindigul.
For Appellant : Mr.K.Chengiz Khan
JUDGMENT
The plaintiff in O.S.No.465 of 2010, whose suit for declaration of
title and injunction was dismissed by the trial Court, has come up with this
appeal upon the affirmation of the said Judgment and decree by the Appellate
Court in A.S.No.31 of 2016.
http://www.judis.nic.in
S.A.(MD)No.54 of 2021
2. According to the plaintiff, the suit property belonged to one
Malayagounder and his heirs. The said Malayagounder and his heirs had sold
the property to Vellaiyan @ Vellaisamy, under a sale deed dated 01.09.1977
along with 1 acre 18 cents in Survey No.184/3. It is also claimed that the
plaintiff and Malayagounder, S/o.Malayagounder have purchased an extent of
12 cents in Survey No.180/10 under a sale deed dated 18.06.1993 from
Vellaisamy, purchased from Malayagounder-1. It is further claim of the
plaintiff that there was an oral partition of the property purchased by him
along with Malayagounder-2 and he was allotted six cents on the southern
side. Therefore, according to the plaintiff, he is entitled to six cents of
property situate in Survey No.180/10.
3. The suit was resisted by defendant contending that the legal heirs
of Malayagounder and the predecessor in interest of the plaintiff, namely,
Malayagounder and his heirs were entitled to one acre and 18 cents in Survey
No.184/3. They had no right over any land in Survey No.180/10. Survey No.
180/10 was included in the sale deed dated 01.09.1977 by mistake. According
to the defendant, the sale deeds dated 01.09.1977 and 18.06.1993 having been
executed by persons, who have no right over the property, will not confer title
on the plaintiff. The defendant further admitted that predecessor in interest of
the plaintiff, namely, Malayagounder, had purchased an extent about 7 cents
http://www.judis.nic.in
S.A.(MD)No.54 of 2021
from the great grandfather of the defendant in the year 1937 and 1953 under
Exs.B15 and B18. According to the defendant, the vender of the plaintiff,
namely, the said Malayagounder had sold an extent of 5 ½ cents to
Saraswathiammal and Vellaichamy. Therefore, the plaintiff's vendor had a
right only to an extent of 1 ¾ cents in Survey No.180/10.
4. At trial, the plaintiff was examined as P.W.1 and one
Balamurugan was examined as P.W.2. Exs.A1 to A8 were marked. . The
defendant was examined as D.W.1 and Exs.B1 to B25 were marked. The trial
Court, upon consideration of evidence on record, concluded that the plaintiff
has not established that his vendor's vendor, namely, Malayagounder, S/o.
Vellaya Gounder and his heirs owned the land in Survey No.180/10 to have
conveyed to the predecessor in interest of the plaintiff. The trial Court also
found that Malayagounder had sold a portion of the property to
Saraswathiammal after the sale in favour of the plaintiff. The trial Court also
recorded a finding that the plaintiff has not established that his vendor was
entitled to the property in Survey No.180/10. On the other hand, the trial
Court found that the grate grandfather of the defendant, namely,
Kothayagounder was entitled to the land in Survey No.180/10 and the
predecessor-in-interest of the plaintiff himself has purchased 7 cents of land
from the said Kothayagounder in the year 1937 and 1953. Therefore,
http://www.judis.nic.in
S.A.(MD)No.54 of 2021
according to the trial Court, Malayagounder was not entitled to any property in
excess of what was purchased by him under Exs.B15 and B18 during the year
1937 and 1953. On the aforesaid findings, the trial Court dismissed the suit.
Aggrieved, the plaintiff preferred an appeal in A.S.No.31 of 2016. The learned
Appellate Judge, upon reconsideration of the evidence on record, concurred
with the findings of the trial Court.
5. I have heard Mr.K.Chengizkhan, learned counsel appearing for
the appellant.
6. Mr.K.Chengizkhan, would vehemently contend that once the
defendants had admitted the title of the plaintiff's predecessor in interest to an
extent at least 7 cents of land in Survey No.180/10 and the sale deed in favour
of Saraswathiammal being later than the sale deed in favour of the plaintiff,
the Courts below were not right in dismissing the suit in its entirety.
7. I am unable to agree with the contention of the learned counsel
for the appellant.
8. If there is a dispute regarding the land purchased by the vendor of
the plaintiff and the land sold by the vendor of the plaintiff to
http://www.judis.nic.in
S.A.(MD)No.54 of 2021
Saraswathiammal, then it is for the plaintiff to file a suit against
Saraswathiammal and get appropriate relief. The plaintiff cannot seek the
relief against the defendants, who are the owners of the remaining land than
what was sold to his vendor. Hence, I do not see any question of law much
less substantial question arising for consideration in the appeal. Therefore, the
second appeal fails and it is accordingly dismissed.
9. It is open to the plaintiff to take appropriate reliefs against the
said Saraswathiammal, if so advised. No costs. Consequently, connected
miscellaneous petition is closed.
08.03.2021
Index : Yes / No
Internet : Yes / No
ogy
To
1. The learned Principal Sub Judge,
Dindigul.
2. The Principal District Munsif Court,
Dindigul.
http://www.judis.nic.in
S.A.(MD)No.54 of 2021
R.SUBRAMANIAN, J.
ogy
S.A.(MD)No.54 of 2021
08.03.2021
http://www.judis.nic.in
