Madras High Court

Ct.N.Palaniappan vs Rm.Arunachalam on 25 November, 2021

                                                                                S.A(MD)No.11 of 2021


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED : 25.11.2021

                                                       CORAM

                       THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                              S.A(MD)No.11 of 2021

                    CT.N.Palaniappan
                    S/o.CT.A.CT.Nachiappa Chettiar                          ... Appellant


                                                           Vs.
                    1.RM.Arunachalam
                      S/o.Ramasamy Chettiar

                    2.AL.Arunachalam
                      S/o.Alagappa Chettiar

                    3.SP.Nagappan
                     S/o.Subramanian Chettiar

                    4.AR.Muthuraman
                      S/o.Arunachalam Chettiar

                    5.T.Ramaiah
                      S/o.Thiyagarajan Chettiar

                    6.PL.Arunachalam
                      S/o.CT.Palaniappan Chettiar,

                    7.RM.Alagappan                                     ... Respondents

                    Prayer: Second Appeal is filed under Section 100 of the Code of Civil
                    Procedure against the judgment and decree dated 22.10.2018, passed in


                    1/15

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                                                                                 S.A(MD)No.11 of 2021


                    A.S.No.2 of 2016 on the file of the Subordinate Judge, Devakottai,
                    confirming the judgment and decree of the Trial Court dated 30.06.2015
                    passed in O.S.No.106 of 2012 on the file of the Principal District Munsif,
                    Karaikudi


                                   For Appellant      : M/s.P.Kalaiyarasi Bharathi

                                                     JUDGMENT

The present Second Appeal has been filed against the judgment and

decree dated 22.10.2018 passed in A.S. No.2 of 2016 on the file of the

learned Subordinate Judge, Devakottai confirming the judgment and decree

dated 30.06.2015 passed in O.S. No.106 of 2012 before the Principal

District Munsif, Karikudi.

2. This Second Appeal has been filed by raising several grounds as

well as on various substantial questions of law. As there was no appearance

on behalf of the respondents, despite notice having been served on them,

this Court proceeded to dispose of the Second Appeal, on hearing the

learned counsel for the appellant and on perusing the materials available on

record.

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3. For the sake of convenience, the parties are referred to as per their

array before the trial Court.

4.The case of the plaintiff, as per the averments made in he plaint, in

short, reads as follows :

The suit schedule property is the ancestral family property of the

plaintiff, inclusive of the sixth defendant, as well as that of the family of

fourth defendant. Sixth defendant is the son of the plaintiff.

The suit schedule property has been in possession and enjoyment of

the forefathers of the plaintiff and fourth defendant and that of the sixth

defendant as well for a long period and therefore they claim right over the

suit properties by way of adverse possession also. Their forefathers have

been issued with patta which has been marked as Ex.A.1. As there was

misunderstanding between the plaintiff and his son fourth defendant, he has

been arrayed as fourth defendant in the suit. As the fourth defendant has sold

three acres of land, which is portion of the suit schedule property, to one

Janaki ammal and therefore under the rule of estoppel he is restrained from

giving evidence in this case.

It is the further case of the plaintiff that an extent of 45 acres of

properties, including the suit schedule property, belonged to the families of

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plaintiff and defendants 4 and 6, and as such they have obtained separate

pattas. The adangal, which stands in the name of the forefathers of plaintiff

has been marked as Ex.A.2 in the case. Defendants 1 to 3, 5 and 7 are

Nagarathar of Alagapuri. There was a suit before the District Munsif's

Court, Devakottai in O.S.No. 356 of 1986 between the first-defendant and

one Tyagarajan Chettiar, who is the father of the 5th defendant herein on the

one side and the sixth-defendant on the other, and since the plaintiff has not

been in cordial terms with him, the plaintiff was not knowing details about

the suit.

It is the further case of the plaintiff that only when he proposed to

issue paper publication on 02.03.2012, he came to know about the said case

and therefore the present suit is not barred by limitation.

It is the further case of the plaintiff that defendants 1, 2, 3, 5 and 7 in

O.S.No.356 of 1986 have wrongly pleaded therein as if the suit property

belongs to Ko-Alagapuri Nagarathar and these defendants were

representatives of Nagarathar, and patta has been issued in the name of

Nagarathar.

It is the further case of the plaintiff that only the forefathers of

plaintiff and D4 who obtained property from Sivagangai Zamin, distributed

the same to Nagarathar. Even during the settlement period, Nagarathar of

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Kothaiyur obtained respective pattas and therefore, it cannot be said that the

lands belong to Nagarathar Podhu. It is only the plaintiff and 4th defendant

who represented the Nagarattar.

It is denied that there is no Kovul land after 30.05.1955 in as much as

the forefathers of the plaintiff had written a letter in 1959 to the settlement

office to distribute the properties in their name and that of Nagarattar. The

copy of that document is marked as Ex.A.4. Koul land alone was in the

possession of Nagarattar then it was seperated and allotted in the name of

Nagarathar. Therefore there was no land for Nagarathar Podhu.

It is the further case of the plaintiff that in view of the above, in the

Revenue Department, the names of the forefathers of plaintiff and D4 have

been recorded as the representatives of Nagarthar. Defendants 1,2,3,5 and 7

have sold Item 3 of the schedule property in 2010. This fact the plaintiff

came to know only at the time of paper publication. While it is so, on

20.10.1986, defendants 1,2,3,5 and 7 posing themselves as the

representatives of Kothaiyur Alagiri Nagarthar have obtained the property

from defendants 4 and 6 and also in the name of Janaki ammal and thus

encroached upon the suit schedule property and then filed O.S.No. 356 of

1986. The plaintiff is not a party to that suit, the suit schedule property is

still in the possession and enjoyment of the plaintiff's family. It is incorrect

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to state that the representatives of Kothaiyur Nagarathar have filed the suit.

The second item of the suit schedule property is in the possession of the

plaintiff and the first item of the property remained vacant. During the

period of April-May of 2012 the defendants 1,2,3,5 and 7 are representing as

if the suit schedule property belongs to them. With regard to this, a lawyer's

notice has been issued and a paper publication has also been given.

Accordingly, the plaintiff filed the suit for declaration and injunction as

prayed for therein.

5. The written statement of the defendants, in short, reads as follows:-

It is false to state that the suit schedule properties are the family

properties of plaintiff and fourth and six defendants. It is incorrect to state

that there is patta issued in the name of the forefathers of the plaintiff and

further the plaintiff has the right of adverse possession due to long

possession of the property. It is again false to state that the plaintiff and the

sixth defendant are not in cordial terms and therefore he does not know

about the pendency of the suit O.S.No.356 of 1986. The suit schedule

properties are exclusively in the possession of the defendants. In Sivagangai

Zamin the then trustees of Nagarathar were given properties to common

kovul of Nagarathar and they obtained seperate pattas. It is not correct to

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state that the properties were given to Nagarathars in common . The trustees

of Nagarathar have been paying tax regularly. It is incorrect to state that

there is no common property of Nagarathar. It is incorrect to state that some

people are residing in Item No.2 of the property with the permission of the

plaintiff, for the reason that he does not know as towho are those residents.

It is the further case of the defendants, that Nagarathars of Ko-

Alagapuri were living jointly as one unit and they received 45 acres of land

including the suit schedule property as common for Nagarathar and obtained

patta No.106 for Kovul lands, in the fasli year 1954. Patta was issued for

common Kovul of Alapuri Nagarathar to the trustees Veerapa chettair,

Nachiappa Chettiar and Muthuraman Chettiar. All of them subsequently

died. Palaniappa Chettiar, the plaintiff herein is the son of late Nachiappa

Chettiar and Karuppan Chettiar is the first defendant in the suit O.S.No. 356

of 1986. The suit schedule properties are part of the properties mentioned in

patta No.106. It is the case of the defendants that excluding the suit schedule

property, for the remaining lands seperate pattas have been obtained by the

Nagarathars and they are in possession and enjoyment of the same after

constructing houses therein. It is to be seen that during settlement period a

petition was given to the settlement officer by Arunachalam Chettiar and

Nachiappa Chettiar, wherein it was specifically mentioned that the suit

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schedule properties were already in the possession of Nagarathas of Ko-

Alagapuri and a request was also made for grant of patta to them. Not only

that, in that petition along with pymash numbers the relevant survey

numbers were also given. A copy of this petition was also filed in O.S.No.

356 of 1986. From these documsents, it is clearly established that plaint

shcedule Item No.1 property exclusively belongs to Nagarathas of Ko

Alagapuri. Item No.3 is already sold by Nagarattar which fact is known to

the plaintiff and he did not raise any objection for the same. For all the

above records, it is established that the plaint schudule properties are the

exlduisve propeties of Nagarathars of Alagapuri.

6. Based on the aforesaid pleadings, the learned Principal District

Munsif, Karaikudi, had framed necessary issues and tried the suit. During

trial, on the side of the plaintiff, the plaintiff has examined himself as P.W.1

and also examined one more witness as P.W.2 and also marked Exs. A1 to

A6. On the side of the defendants, the first defendant examined himself as

D.W.1 and also examined one more witness as D.W.2. and had marked

Exs.B1 to B24.

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7. The learned Principal District Munsif, Karaikudi, after considering

the materials placed before him dismissed the suit. Aggrieved by the same,

the plaintiff had filed an appeal in A.S.No.2 of 2018 on the file of the

Subordinate Judge, Devakottai. The learned Subordinate Judge, Devakottai,

by the judgment and decree dated 2w.10.2018 had dismissed the Appeal in

A.S.No.2 of 2019. Feeling aggrieved, the plaintiff had filed the present

second appeal.

8. Heard Mr.M/s.Kalaiyarasi Bharathi, the learned counsel appearing

for the appellant at the admission stage.

9.The learned counsel for the appeallant has submitted that the suit

property originally belonged to the forefathers of the plaintiff and

defendants 4 and 6. The sixth defendant is the son of Plaintiff. The

forefathers of the plaintiff and fourth defendant have been in possession and

enjoyment of the suit properties for a very long time and hence they claim

right to the suit properties by way of adverse possession also, without

prejudice to the claim that the suit properties are their ancestral properties.

He would further submit that it is only the forefathers of the plaintiff and the

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fourth defendant, who have obtained the suit properties from Sivagangai

Zamin. Therefore, it is false to state that Nagarathar Community obtained

patta. The defendants 1, 2, 3, 5 and 7 belonged to Nagarathar Community

and there is no common property of Nagarathat community He would

further submit that the plaintiff allowed some persons to reside in item no.2.

10. The learned counsel appearing for the appellant would submit

that the Courts below without taking note of the fundamental principles of

law that by holding Ex.A1 patta, which stands in the name of the forefather

of the appellant and respondents 4 and 6, they have been reguarly paying the

tax and without even seeing the patta (Ex.A1) and the income tax invoices,

dismissed the suit. The Courts below failed to see that the defendants have

not produced any documents to show that they got right and possession of

the suit property. The courts below failed to follow the provision

contemplated in Section 90 of Evidence Act, wherein it is stated that the

Court may presume the document of 30 years back, as if executed by the

person by whom it is produced. The findings of the Courts below are purely

based upon surmise and circumstantial evidence and the same needs

interference.

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11.This Court paid its anxious consideration to the submissions made

and also carefully perused the materials placed on record.

12. On a perusal of the records, this Court did not find any document

in the name of the plaintiff in respect of the suit properties. The plaintiff

states that he is the owner of Item No.2 and he permitted some persons to

reside in the suit property, but during the course of the cross examination he

stated that he himself did not know as to how many persons were permitted

to reside in item No.2. If really the plaintiff is the absolute owner of the said

item, he would have known the specific particulars regarding residents in

item No.2. The Plaintiff has no right over the item No.3, because he did not

object the sale of the said item by Nagarathars and also has not taken action

to cancel the sale deed excuted by the Nagarathars.

13. It is seen that in Sivagangai Zamin the then trustees of Nagarathar

were given properties to common kovul of Nagarathar and they obtained

seperate pattas. It is not correct to state that the properties were given to

Nagarathars in common . The trustees of Nagarathar have been paying tax

regularly. It is incorrect to state that there is no common property of

Nagarathar. It is incorrect to state that some people are residing in Item No.

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2 of the property with the permission of the plaintiff, for the reason that he

does not know as towho are those residents. Nagarathars of Ko-Alagapuri

were living jointly as one unit and they received 45 acres of land including

the suit schedule property as common for Nagarathar and obtained patta No.

106 for Kovul lands, in the fasli year 1954. Patta was issued for common

Kovul of Alapuri Nagarathar to the trustees Veerapa chettair, Nachiappa

Chettiar and Muthuraman Chettiar. All of them subsequently died.

Palaniappa Chettiar, the plaintiff herein is the son of late Nachiappa Chettiar

and Karuppan Chettiar is the first defendant in the suit O.S.No. 356 of 1986.

The suit schedule properties are part of the properties mentioned in patta No.

106. It is the case of the defendants that excluding the suit schedule