Madras High Court
T.K.Subramania Mudaliar vs T.Subramania Mudaliar on 8 November, 2021
S.A(MD)No.177 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.177 of 2011
and
M.P(MD)No.1 of 2011
1.T.K.Subramania Mudaliar
2.S.Srinivasa Sundar
3.S.Arun ... Appellants / Appellants / Defendants
Vs.
T.Subramania Mudaliar ... Respondent / Respondent / Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 20.10.2010, passed in
A.S.No.86 of 2010, on the file of the Additional Subordinate Court,
Tirunelveli, confirming the judgment and decree, dated 20.04.2010, passed
in O.S.No.88 of 2006, on the file of the First Additional District Munsif
Court, Tirunelveli.
For Appellants : Mr.D.Srinivasaragavan
For Respondent : Mr.R.Manimaran
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S.A(MD)No.177 of 2011
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.88 of 2006
by the First Additional District Munsif Court, Tirunelveli and in A.S.No.86
of 2010 by the Additional Subordinate Court, Tirunelveli, are being
challenged in the present second appeal.
2. The respondent / plaintiff has instituted a suit in O.S.No.88 of 2006
on the file of the trial Court for the relief of permanent injunction, wherein
the present appellants have been shown as defendants 1 to 3.
3. It is the case of the respondent / plaintiff that the suit property
originally belonged to one T.K.Kailasa Sundara Mudaliar and
T.K.Thirumalaiappa Mudaliar. The said T.K.Thirumalaiappa Mudaliar filed
a suit in O.S.No.61 of 1947 before the Sub-Court, Tirunelveli, for partition.
The said suit ended in a compromise in I.A.No.445 of 1947 and according to
the said compromise, 15-1/2 cents was allotted to the father of the plaintiff,
namely, T.K.Thirumalaiappa Mudaliar and he was in possession and
enjoyment of the same. The said T.K.Kailasa Sundara Mudaliar died in the
year 1962, leaving behind the first defendant and his other sons. The
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S.A(MD)No.177 of 2011
brothers of the plaintiff filed a suit in O.S.No.187 of 2000 before the
Principal Sub-Court, Tirunelveli, against their father T.K.Thirumalaiappa
Mudaliar and the plaintiff for partition. The said suit also ended in a
compromise and the suit property in Survey No.340/2C measuring an extent
of 15-1/2 cents was allotted to the plaintiff and a final decree was also
passed. The plaintiff has also applied for separate patta in his name and a
patta was also issued in his name. The District Collector, Tirunelveli, sent a
notice to the plaintiff regarding acquisition of 7-3/4 cents for the purpose of
underground drainage. The plaintiff also executed a sale deed to an extent of
7-3/4 cents in favour of the Tirunelveli Corporation and he was also
enjoying remaining 7-3/4 cents. Since the defendants are intimidating the
plaintiff from enjoying the suit property, the plaintiff has instituted the suit.
4. In the written statement filed on the side of the appellants /
defendants, it is averred that the suit schedule property was part of the
property in O.S.No.61 of 1947 and there was a division in Survey No.340/2
in equal halves. The defendants are not aware of the allotment of 15-1/2
cents as per the said decree in O.S.No.187 of 2000. Hence, there are other
shares and the plaintiff cannot quantify it as 15-1/2 cents. The plaintiff has
parted the share in Survey No.340/2 in favour of the Corporation and the
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S.A(MD)No.177 of 2011
Tirunelveli City Municipal Corporation has also made construction. Hence,
the Tirunelveli City Municipal Corporation is a proper and necessary party
and the suit is liable to be dismissed for non-joinder of necessary parties and
there is absolutely no cause of action for instituting the suit.
5. Before the trial Court, on the side of the plaintiff, the plaintiff
examined himself as P.W.1 and Exs.A1 to A6 were marked. On the side of
the defendants, the first defendant was examined as D.W.1 and Exs.B.1 and
B.2 were marked.
7. On the basis of the rival pleadings on either side, the trial Court has
framed necessary issues and after evaluating both the oral and documentary
evidence, has decreed the suit in favour of the respondent / plaintiff.
8. Aggrieved by the Judgment and decree passed by the trial Court,
the defendants as appellants, had filed an Appeal Suit in A.S.No.86 of 2010.
The first appellate Court, after hearing both sides and upon reappraising the
evidence available on record, has allowed the appeal and confirmed the
Judgment and decree passed by the trial Court. Challenging the said
concurrent Judgments and decrees passed by the Courts below, the present
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S.A(MD)No.177 of 2011
second appeal has been preferred at the instance of the defendants as
appellants.
9. Heard the learned counsel for the appellants and the learned
counsel for the respondent and also perused the records carefully.
10. The learned counsel appearing for the appellants / defendants
would submit that the respondent / plaintiff has to prove that the suit
schedule property is actually available on earth. In the absence of any such
definite proof by the respondent / plaintiff, the Courts below ought not to
have granted the decree as prayed for in favour of the respondent / plaintiff.
The respondent / plaintiff has sought for bare injunction based on his title
over the suit schedule property and not based on his possession over the suit
property and therefore, he has to file a suit for declaration of his title over
the suit property, since the appellants / defendants are disputing the title over
the suit property and availability of land on the earth. No independent right
had been accrued or conferred on the respondent / plaintiff's father under
Ex.A6 and the right to take water from Survey No.340/2C alone was
conferred on him along with others and therefore, the respondent / plaintiff
is not justified in claiming title over the suit property based on Ex.A.6.
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S.A(MD)No.177 of 2011
Further, Ex.A.2 would not confer any right on the respondent / plaintiff, as
the same is based on Ex.A.6. As per Ex.B.1, the respondent / plaintiff as well
as one Rabbani brothers had executed a sale deed in favour of the
Tirunelveli Municipal Corporation measuring the entire extent covered in
Survey No.340/2C and thus, there are no lands available much less 7-3/4
cents in Survey No.340/2C and therefore, the respondent / plaintiff is not
entitled for the suit relief, as against the appellants herein, without
impleading the proper parties in the suit. No documents are available before
the Courts below to prove that 7-3/4 cents of land situate on the Southern
side of Survey No.340/2C belongs to the respondent / plaintiff and in the
absence of any such document, the respondent / plaintiff is not entitled to the
said relief, as the other documents are relating only to entire extent of lands
in Survey No.340/2C. The respondent / plaintiff was claiming his right
through Ex.A6 and Ex.A2 documents, whereas, the said properties were
handed over to the Tirunelveli Municipal Corporation through Ex.B.1, sale
deed by the respondent / plaintiff, which is a subsequent document to Ex.A6
and Ex.A2 and therefore, the respondent / plaintiff has no manner of right
whatsoever over suit schedule in Survey No.340/2C and prayed for
dismissal of the Second Appeal.
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S.A(MD)No.177 of 2011
11. The learned counsel appearing for the respondent / plaintiff
submitted that the Courts below, after analysing the documents available on
record, has rightly decreed the suit in favour of the respondent / plaintiff and
prayed for allowing the Second Appeal.
12. On going through the above facts of the case, it is seen that
T.K.Kailasa Sundara Mudaliar and T.K.Thirumalaiappa Mudaliar are
brothers and the said T.K.Thirumalaiappa Mudaliar filed a suit for partition
in O.S.No.61 of 1947 before the Sub Court, Tirunelveli and accordingly, the
said suit ended in a compromise in I.A.No.445 of 1947, in which, item No.9
of the first schedule was allotted to T.K.Thirumalaiappa Mudaliar, who is
the father of the respondent / plaintiff and T.K.Thirumalaiappa Mudaliar got
right in Survey No.340/2C and got every right to take water in the suit Tank
and also other sharers take water from the suit Tank and accordingly, when
the title of the said T.K.Thirumalaiappa Mudaliar has been very well defined
in the said decree of the year 1947, the appellants / defendants had got no
right over the property regarding the said Tank in Survey No.340/2C. As per
Ex.A6, the respondent / plaintiff has proved his title over the suit property
through his father and also Ex.A.2, which is the suit filed by the family
members of T.K.Thirumalaiappa Mudaliar and the said suit has been filed
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S.A(MD)No.177 of 2011
for partition and in the said suit, the plaintiff has been arrayed as the second
defendant and as per the said compromise decree, the respondent / plaintiff
has derived title to the said land in Survey No.340/2C. Ex.B.2 has been
executed by T.S.Padmanaba Mudaliar in favour of Rabbani and others, but
in the said document, the said parties have not stated how did they inherit
the above said property in Survey No.340/2C, which does not talk about
survey numbers and it says about the four boundaries and Ex.B.2 has got
nothing to do with the property, as the said T.S.Padmanaba Mudaliar and his
family members has sold the suit property in favour of Rabbani and others
and there is no document to show that how T.S.Padmanaba Mudaliar has got
title over the undivided share and the appellants / defendants ought to have
questioned the said T.S.Padmanaba Mudaliar, how he derived the title over
the property. If he has 15-1/2 cents in the above said document, there is no
survey number available regarding Survey No.340/2C as it says about the
four boundaries and in between there is a Tank. The description of the
property does not show any right on the said lands alleged to have been
occupied or sold by the third parties and both the Courts below have
considered the same as it is not through the said Rappani and others. Hence,
the question of law is only a fact and the same has not been established by
the appellants and the same is not accepted and rejected.
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S.A(MD)No.177 of 2011
13. As it is seen that the respondent / plaintiff has succeeded to his
property of 15-1/2 cents through the compromise decree in the partition suit
between the family members of the said T.K.Thirumalaiappa Mudaliar, who
inherited the property by way of a partition suit in O.S.No.61 of 1947 and
O.S.No.187 of 2000 and as such, the respondent / plaintiff has proved his
title over the suit property, who had succeed the said land from his father
and the appellants have not proved the same and the same has to be rejected.
14. As it is already seen that 7-3/4 cents has already been sold by the
said respondent / plaintiff in favour of the Tirunelveli City Municipal
Corporation and the said title has been derived by way of his title who had
inherited the property from his father and the claim made by the appellants /
defendants is also rejected.
15. It is seen that in the decree in O.S.No.61 of 1947, the ninth item in
first schedule was allotted to the father of the plaintiff and from the father of
the respondent / plaintiff, the respondent / plaintiff herein inherited the
property and the same was alloted by way of compromise between the
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S.A(MD)No.177 of 2011
family members of T.K.Thirumalaiappa Mudaliar and as a result, 15-1/2
cents in Survey No.340/2C has been alloted to the respondent / plaintiff and
the document, namely, Ex.A.6 would prove the same. Ex.A.2 would show
that the property has been alloted to the respondent / plaintiff and the
appellants / defendants have not proved their title through any document.
The respondent / plaintiff's title has been scrutinised by the Courts below
and granted a decree of permanent injunction and the appellants / defendants
have not raised any question whether the respondent / plaintiff is having a
title over the suit property. If at all, the appellants / defendants are having
the possession, they ought to have produced appropriate documents to prove
the same and without any documents, the appellants cannot canvass the
same. It is also seen that both the Courts below have rendered that the
respondent / plaintiff had got a clear title over the suit property, even though
he has not filed a suit for declaration and he has filed a suit for permanent
injuction. As the title as well as injunction have been proved by necessary
appropriate revenue records, this Court is of the view that the appellants /
defendants have not made out a case for interference and there is no
substantial questions of law arising in this Second Appeal and it is well
written that the first schedule of the ninth item of the suit property has been
alloted to the father of the plaintiff, which is the subject matter of the suit
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S.A(MD)No.177 of 2011
and it reveals that the Tank was alloted to the father of the respondent /
plaintiff and that being the case, the appellants / defendants, who have not
produced any piece of evidence to show that the respondent / plaintiff's
father had no right over the said property in contra.
16. It is also further seen that there is no evidence to show that the
appellants / defendants are in possession and enjoyment of the property.
when there is no piece of paper produced to show that the appellants /
defendants have got right over the property, if at all they have claimed right
over the suit property, which has been sold in favour of Rappani and others
by T.S.Padmanaba Mudaliar, they ought to have proceeded against the other
third parties and cannot come and disturb the possession of the respondent /
plaintiff regarding 7-3/4 cents in Survey No.340/2C. The plaintiff has
conveyed 7-3/4 cents to the Municipal Corporation in Survey No.340/2C
and remaining 7-3/4 cents is in possession of the plaintiff, which has been
proved beyond doubt as right over the property has been established. The
remaining portion of the property is in the possession of the plaintiff, in
which the Municipal Corporation has not disputed at any point of time. It is
further seen that the lands conveyed to the said Municipal Corporation is
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S.A(MD)No.177 of 2011
only 23-1/4 cents, in which 7-3/4 cents belongs to the plaintiffs and 15-1/2
cents of Rappani brothers. As 7-3/4 cents is in the possession of the
respondent / plaintiff and the granting of permanent injunction by the trial
Court as well as the first Appellate Court is only based on the evidence and
the documents which requires no interference from this Court and
accordingly the appellants / defendants claim is rejected. It is further seen
that if the appellants / defendants have got right over the property, they
ought to have proceed the same in accordance with law and cannot disturb
the peaceful possession and enjoyment of the respondent / plaintiff, as he
has proved the same beyond any doubt which is evident from the partition
suits by the decrees granted. Even if the respondent / plaintiff has not filed
the suit for declaration, this Court finds that the possession, title and
enjoyment of the suit property is in favour of the respondent / plaintiff,
which has also been confirmed by the Courts below, which are the authority
of facts had granted permanent injunction.
17. For the reasons aforesaid, this Court is of the considered view that
no substantial questions of law has been made out by the appellants /
defendants to interfere with the well considered judgment and decree
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S.A(MD)No.177 of 2011
rendered by the Courts below and accordingly, the Second Appeal stands
dismissed. No costs. Consequently, connected Miscellaneous Petition is
closed.
08.11.2021
Index : Yes/No
Internet : Yes/No
ps
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 Subordinate Court,
Tirunelveli.
2.The First Additional District Munsif Court,
Tirunelveli.
3.The Record Keeper,
V.R. Section, Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.177 of 2011
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.177 of 2011
08.11.2021
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