Madras High Court
Sivasamy vs V.M.Peyapandiyan ... 1St on 1 November, 2021
1 S.A.(MD)No.777 OF 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.11.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.777 of 2005
1. Sivasamy
2. A.V.Gopalakrishnan
3. A.V.Subramanian
4. A.V.Ramakrishnan
5. A.V.Gokulan
6. A.V.Indiran ... Appellants / Respondents /
Defendants
Vs.
1. V.M.Peyapandiyan ... 1st Respondent / Appellant /
Plaintiff
2. A.V.Manoharan ... 2 Respondent / 7th Respondent /
nd
7th Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the judgment and decree dated 25.02.2003
passed in A.S.No.163 of 2000 on the file of the Principal
Subordinate Court, Madurai, reversing the judgment and
decree dated 29.10.1999 passed in O.S.No.30 of 1996 on the
file of the District Munsif Court, Thirumangalam and thereby
dismiss this suit in O.S.No.30 of 1996 with costs throughout.
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1/10
2 S.A.(MD)No.777 OF 2005
For Appellants : Mr.J.Barathan,
for M/s.T.R.Jeyapalam.
For R-1 : Mr.H.Lakshmi Shankar,
for Mr.S.Elango.
For R-2 : No appearance.
***
JUDGMENT
The defendants in O.S.No.30 of 1996 on the file of the
District Munsif Court, Thirumangalam, are the appellants in
this second appeal.
2. The first respondent herein, namely,
V.M.Peyapandiyan filed the said suit seeking the relief of
declaration and permanent injunction in respect of the suit
properties. The suit property is comprised in Survey No.428/3
in Karadikal Village, Thirumangalam Taluk, measuring an
extent of 2 acres and 12 cents. The case of the plaintiff is that
he purchased the suit property from one Rajammal under
Ex.A.1 dated 19.05.1995. The said Rajammal's husband
Rajaram purchased the suit property from one Varthiniyammal
and another under Ex.A.11 dated 15.02.1971. Rajaram had
dealt with the suit property by mortgaging the same in favour
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of the local Co-operative Bank under Ex.A.2 dated 02.04.1971.
Since the defendants tried to interfere with the possession and
enjoyment, the plaintiff was constrained to file the said suit.
The appellants herein filed written statement controverting
the plaint averments. Based on the divergent pleadings, the
trial Court framed the necessary issues.
3. The plaintiff examined himself as P.W.1 and one
Kamatchi as P.W.2. Ex.A.1 to Ex.A.18 were marked. On the
side of the defendants as many as three witnesses were
examined. Ex.B.1 to Ex.B.8 were marked. An Advocate
Commissioner was appointed and his report was marked as
Ex.C.1.
4. After a consideration of the evidence on record, the
trial Court by judgment and decree dated 29.10.1999
dismissed the suit. Aggrieved by the same, the plaintiff filed
A.S.No.163 of 2000 before the Principal Subordinate Court,
Madurai. In the first appeal, the defendants filed I.A.No.54 of
2003 for adducing additional evidence. The said I.A. was
allowed and Ex.A.19 Patta came to be marked. After a
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consideration of the evidence on record, the first appellate
Court by judgment and decree dated 25.02.2003 set aside the
decision of the trial Court and allowed the appeal and decreed
the suit as prayed for. Challenging the same, this second
appeal came to be filed.
5. This second appeal was admitted on the following
substantial questions of law:-
“1. Whether the lower appellate Court has committed
an error of law in failing to follow the principles that the
plaintiff should succeed on the strength of his own case and
not by picking holes in the case of the defendants vide 1946 II
MLJ 98, 1999 I MLJ 769 and 2003 (3) L.W.763?
2. Whether patta is a document of title and can it be
relied upon for proving title in a suit for declaration of title?
3. Whether the lower appellate Court committed an
error of law in omitting to draw proper inference from Ex.A.2,
the order of the Revenue Divisional Officer in appeal, and
Ex.B.8, the patta pass book issued to Vasudeva Iyer, father of
the defendants in the year 1971?
4. Whether the lower appellate Court committed an
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error of law in holding that the plaintiff's vendor has got title
to the suit property on the basis of UDR proceedings of the
year 1987 by omitting to consider that the patta pass book
given to Vasudeva Iyer, defendant's father is of the year 1973?
5. Whether the lower appellate Court has committed
an error of law in holding that mere marking of Ex.A.11
amounts to proof of it? ”
6. The learned counsel appearing for the appellants /
defendants submitted that the plaintiff had traced his title
from one Varthiniyammal. There is absolutely no material to
show that the said Varthiniyammal had any title over the suit
property. The learned trial Munsif after a careful
consideration of the evidence adduced by the plaintiff had
clearly noted that there is no co-relation between Survey
number and what was mentioned in Ex.A.11. The first
appellate Court ought to have seen that there was a serious
contest regarding the title between the father of the
contesting defendants and Rajaram from whom the plaintiff
traced his title. When the revenue record was changed in the
name of Rajaram, Vasudeva Iyer filed an appeal before the
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Revenue Divisional Officer, Usilampatti under Ex.B.2 to set
aside the mutation of patta in favour of Rajaram. He would
also state that the trial Court had given a categorical finding
that the property appears to be full of thorny shrubs and that
therefore, the plaintiff could not establish possession over the
same. The first appellate Court by an inverse application of
the principle, “ possession follows title ” had conferred title on
the plaintiff. He also pointed out that the plaintiff was allowed
to mark Ex.A.19 and the same was treated as additional
evidence even without following the procedure set out in
Order 41 Rule 28 of C.P.C. Even though on a deeper scrutiny
one may fault the case projected by the defendants, on the
basis of the weakness in the defence, the plaintiff cannot be
allowed to succeed. He called upon this Court to answer the
substantial questions of law in favour of the appellants and set
aside the impugned judgment and restore the decision of the
trial Court.
7. In the alternative, he submitted that this Court
could remand the matter to the file of the trial Court, since the
first appellate Court without following the procedure set out in
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Order 41, Rule 28 C.P.C., had permitted marking of Ex.A.19.
8. Per contra, the learned counsel appearing for the
first respondent/ plaintiff submitted that the impugned
judgment does not call for any interference and he called for
dismissal of the appeal.
9. I carefully considered the rival contentions and
went through the entire evidence on record.
10. The suit property is comprised in Survey No.428/3
in Karadikal Village. The defendants have not filed any parent
title document. On the other hand, the plaintiff has filed
Ex.A.1 sale deed dated 19.05.1995 executed by one Rajammal.
The said Rajammal in turn had inherited the property from her
husband, namely, Rajaram. Rajaram had purchased the suit
property under Ex.A.11 dated 15.02.1971 from one
Varthiniyammal and another. The defendants themselves have
admitted that the suit property originally stood in the name of
Gopalsamy Naidu. Ex.A.19 is the settlement deed issued in the
name of Gopalsamy Naidu. It is true that Ex.A.19 was
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straightaway allowed to come on record by the first appellate
Court and the procedure under Order 41, Rule 28 C.P.C. was
not followed. But I am not inclined to remand the matter on
that ground. Ex.B.1 is the copy of SLR marked by the
appellants. In Ex.B.1 also, the name of Gopalsamy Naidu is
finding mention. D.W.2 Gopalakrishnan admits that the
settlement proceedings stood in the name of Gopalsamy
Naidu. The legal heirs of Gopalsamy Naidu have executed
Ex.A.18 dated 17.02.1971 stating that they have no objection
for Varthiniyammal to convey the property comprised in
Survey No.428/3. Of course Ex.A.18 cannot be called as the
document of conveyance. It is however a release deed. But the
fact remains that a document was executed in favour of
Varthiniyammal by the legal heirs of Gopalsamy Naidu. The
evidence on record clearly points to the fact that the property
originally stood in the name of Gopalsamy Naidu. Therefore,
while the plaintiff may not be able to project an absolute title,
he certainly has a better title compared to that of the
appellants. I am satisfied on a overall consideration of the
evidence on record that the case of the plaintiff stands on a
higher footing compared to that of the appellants. Therefore,
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the substantial questions of law are answered against the
appellants.
11. This second appeal is dismissed. No costs.
01.11.2021
Index : Yes / No
Internet : Yes/ No
PMU
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 Principal Subordinate Judge,
Madurai.
2. The District Munsif,
Thirumangalam.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.777 of 2005
01.11.2021
https://www.mhc.tn.gov.in/judis
