Peter vs Soosaimariyan
2021 Latest Caselaw 22722 Mad

                                                                             S.A.(MD)No.139 of 2011


                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED:     19.11.2021

                                                    CORAM:

                       THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN


                                           S.A.(MD)No.139 of 2011



                     1.Peter
                     2.Chellaiah
                     3.Eskkithai
                     4.Muthukumar                   ... Defendants / Appellants/ Appellants


                                                      Vs.


                     1.Soosaimariyan
                     2.Kannimariyal                 ... Plaintiffs / Respondents/Respondents



                     PRAYER : Second Appeal filed under Section 100 of Civil Procedure
                     Code, against the judgment and decree passed in A.S.No.97 of 2008,
                     on the file of the Sub Court, Thoothukudi, dated 31.08.2010,
                     confirming the Judgment and Decree of the learned District Munsif,
                     Sathankulam, passed in O.S.No.60 of 2006, dated 26.10.2007.


                                  For Appellant     : Mr.R.Balakrishnan
                                  For Respondents   : Ms.Jessi Jeeva Priya




                     1



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                                                                                 S.A.(MD)No.139 of 2011




                                                        JUDGMENT

The appeal is directed against the Judgment and Decree, passed

in A.S.No.97 of 2008, by the learned Subordinate Judge, Thoothukudi,

dated 31.08.2010, confirming the Judgment and Decree of the learned

District Munsif, Sathankulam, passed in O.S.No.60 of 2006, dated

26.10.2007.

2.For the sake of convenience, the parties are referred to as,

as described before the trial Court.

3.The averments made in the plaint, in brief, are as follows:-

The 1st plaintiff is the husband and the 2nd plaintiff is the wife

of 1st plaintiff. The 1st plaintiff is in possession and enjoyment of the

suit property, by virtue of sale deed, dated 09.09.1972 and thereafter,

by the 2nd plaintiff, by virtue of the sale deed, dated 26.05.1980. The

plaintiffs are in peaceful possession and enjoyment of the property by

constructing a house in the front portion. The back portion the suit

property is being enjoyed by the plaintiffs, for the past 20 years, as

vacant site by harvesting Udai Trees and to reach the same, they are

https://www.mhc.tn.gov.in/judis S.A.(MD)No.139 of 2011

using a lane, situated on the western side of the house. The

defendants have no right in the suit property. From 15.09.2006

onwards, the 1st defendant, disturbing the peaceful possession and

enjoyment of the suit property by the plaintiffs. Therefore, the

plaintiffs filed a suit for permanent injunction, against the defendants,

restraining them from interfering with the suit schedule property.

4. The averments made in the written statement, filed by the

defendants, in brief, are as follows:-

It is not correct to say that the plaintiffs constructed a house in

the front part of the suit property and enjoying the vacant site and

lane. The plaintiffs are no way connected with the vacant site and

lane and they never in possession and enjoyment of the same. The

suit land and the vacant site are originally belonged to the mother of

the 1st defendant and after her demise, the 1st defendant, his brothers

and sisters were enjoying the property jointly. By release deed, the

1st defendant and his brother Anand released theirs share to the 3 rd

defendant. Thereafter, the defendants 2 to 4 are enjoying the suit

vacant site. The suit is bad for non-joinder of necessary parties, since

the 2nd defendant and his brother Muthukumar are necessary parties

to the suit. The Plaintiffs have not come to the Court with clean hands.

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5. The 1st plaintiff, before the trial Court, examined himself as

P.W.1 and marked 4 documents as Ex.A.1 to Ex.A.4. On the side of the

defendants, examined one Isakkithai and Paramasivam / D.W.1 and

D.W.2 and marked 2 documents as Ex.B1 and Ex.B2.

6. On the basis of the above pleadings, the trial Court framed

necessary issues viz.,

(i) Whether the suit property is in possession and enjoyment of the 1st plaintiff through the sale deed, dated 09.09.1972 and by the 2nd plaintiff through the sale deed, dated 26.05.1980?

(ii) Whether the suit is bad for non-

joinder of necessary parties?

(iii) Whether the plaintiff is entitled to relief of permanent injunction?

(iv) To order as to costs?

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7. Upon considering the evidence adduced on either side, the

trial Court, allowed the suit filed by the plaintiffs, as prayed for, with

costs.

8. Aggrieved by the Judgment and Decree of the trial Court,

the defendants preferred an appeal in A.S.No.97 of 2008, on the file

of the learned Subordinate Judge, Thoothukudi.

9. After determining necessary points for consideration, the

first Appellate Court, by relying on the documents referred to,

accepting the findings of the trial Court, dismissed the Appeal Suit

filed by the defendants, thereby, confirmed the Judgment and Decree

of the trial court.

10. Against the concurrent findings of the Courts below, the

unsuccessful defendants, filed the present appeal before this Court.

11. In the memorandum of Second Appeal, the appellants /

defendants sought to raise the following substantial questions of law?

“1. Whether the findings of the Court below are right in law in not adverting to the

https://www.mhc.tn.gov.in/judis S.A.(MD)No.139 of 2011

very evidence of DW1 and DW2 corroborated by the documentary evidence under Exs.B1 and B2, which would clearly establish the right and title of the appellants over the disputed vacant site and the land in the absence of any materials on the side of the respondents, as plaintiffs and the very admission of the respondents as P.W.1?

2. Whether the Courts below are right in law in granting the decree of permanent injunction in respect of the disputed vacant site and land in the absence of any evidences either by oral or by documentary to establish the possession and enjoyment over the disputed vacant site and the lane by the respondents?

3. Whether the Courts below are right in law in shifting the burden on the appellants, who are the defendants in the suits especially when the respondents, as plaintiffs have not adduced any materials to establish the possession and enjoyment of the suit schedule vacant site and the disputed land situated on the western side of the plaintiffs house?

https://www.mhc.tn.gov.in/judis S.A.(MD)No.139 of 2011

4. Whether the lower appellant Court is right in law in not independently considering the oral and documentary evidence in a property and perspective manner by mechanically concurring with the view of the trial Court after framing proper points for consideration?”

12. Mr.R.Balakrishnan, the learned counsel appearing for the

appellants / defendants would submit that the Courts below erred in

law in not adverting to the evidence of D.W.1 and D.W.2, corroborated

by the documentary evidence under Ex.B1 and Ex.B2, which would

clearly establish the right and title of the defendants over the disputed

vacant site and lane, especially, in the absence of any materials on the

side of the plaintiffs. The Courts below erred in law in relying the

documentary evidence under Ex.A1 to Ex.A4, which would create

rights to the plaintiffs only in respect of the house situated and

granting the relief to the larger extent more than Ex.A1 and Ex.A2 is

unsustainable. The boundary recitals mentioned in the plaint schedule

is vary from the recitals under Ex.A1 and A2 and as such, granting the

relief of decree of permanent injunction in respect of disputed vacant

site, on the basis of Exs.A1 and A2 is not sustainable. Further, Ex.B2

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would clearly establish the rights of the defendants over the disputed

vacant site and land and the specific four boundaries thereon. Hence,

the learned counsel prayed for allowing the appeal.

13. The learned counsel appearing for the respondents /

plaintiffs would submit that the plaintiffs are husband and wife. The

1st plaintiff is in possession and enjoyment of the suit property by

virtue of sale deed, dated 09.09.1972 and by the 2nd plaintiff, by virtue

of the sale deed, dated 26.05.1980. The plaintiffs are in peaceful

possession and enjoyment of the property, by constructing a house in

the front portion. The back portion of the suit property is being

enjoyed as vacant site by harvesting 'Udai Trees' and to reach the

same, they are using a lane, situated on the western side of the house.

The plaintiffs are enjoying the property for the past 20 years. The

defendants have no right in the suit property. Both the Courts below

have rightly negatived the claim of the appellants / defendants and the

well considered Judgment of the Courts below need not be interfered

with any prayed for dismissal of the appeal.

14. I have carefully considered the rival submissions made by

the learned counsels appearing on either side and perused the

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materials on record.

15. On careful scrutiny of the records it is seen that the 1st

plaintiff is in possession and enjoyment of the suit property, by virtue

of sale deed, dated 09.09.1972 and by the 2nd plaintiff, by virtue of the

sale deed, dated 26.05.1980 and paying kists regularly. The

plaintiffs, constructed a house in the front portion of the suit property

and the back portion the suit property is being enjoyed as vacant site

and lane. But, the defendants contended that the vacant site are

originally belonged to the mother of the 1st defendant and after her

demise, the 1st defendant, his brother and sister were enjoying the

property jointly and by oral release deed, dated 13.03.2006, the 1st

defendant and his brother Anand released theirs share to the 3rd

defendant and accordingly, the defendants 2 to 4 are enjoying the suit

vacant site.

16. Ex.B1 is the release deed, dated 13.03.2006, said to have

been executed by the the 1st defendant and his brother Anand, to the

3rd defendant Isakkithai, releasing their shares. Ex.B2 is the

unregistered sale deed, dated 29.12.195, executed by one Eesaskku to

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one Anthoni, who is the the 1st defendant's mother's grandfather. As

per Section 17 of the Registration Act, a document like a deed of sale,

which at the same time purports to extinguish the right, title and

interest of the vendor and create such right, title or interest or the

vendor and create such right, title or interest in the purchaser with

reference to immovable property of the value of Rs.100/- and

upwards, is compulsorily registrable. But, in the case on hand, the

value Ex.B1, sale deed, was shown as Rs.150/- and therefore, Ex.B1

ought to have been registered, as per the said Act and therefore,

Ex.B1, as per the Indian Evidence Act, cannot be accepted as an

evidence. Admittedly, the defendants claiming right over the property

based on Ex.B1. Except Ex.B1, no other evidence has been adduced

by the defendants to prove that the suit property is belonged to them.

However, through Exs.A1 to A4, it is clear that the plaintiffs proved

the fact that the suit property is absolutely belonged to them.

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17. Moreover, the Hon'ble Supreme Court time and again held

that a second appeal can be dismissed at the admission stage,

without formulating a substantial question of law, if none arises. This

is one such case and therefore, in the light of the narrative discussion,

this second appeal is liable to be dismissed, at the admission stage

itself holding that no substantial question of law arises.

18. In the result, the Second Appeal is dismissed, confirming

the Judgment and Decree, passed in A.S.No.97 of 2008, by the learned

Subordinate Judge, Thoothukudi, dated 31.08.2010, in confirming the

Judgment and Decree of the learned District Munsif, Sathankulam,

passed in O.S.No.60 of 2006, dated 26.10.2007. However, there shall

be no order as to costs.

19.11.2021

Index : Yes/No Internet : Yes/No

vsm

https://www.mhc.tn.gov.in/judis S.A.(MD)No.139 of 2011

V.BHAVANI SUBBAROYAN, J.

VSM

To

1.The Subordinate Judge, Thoothukudi.

2.The District Munsif, Sathankulam.

3.The Record Keeper Vernacular Section, Madurai Bench of Madras High Court, Madurai.

JUDGMENT MADE IN

S.A.(MD)No.139 of 2011

19.11.2021

https://www.mhc.tn.gov.in/judis