Madras High Court
P.Kannammal (Deceased) vs A.Mani on 26 November, 2021
S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
1.P.Kannammal (deceased)
2.Unnamalai
3.P.Elumalai
4.Govindammal
5.P.Masilamani
6.P.Raghu
7.R.Chinnathai
8.R.Suresh
9.R.Priya ... Appellants
(Appellants 2 to 6 brought on record as legal representatives of the
deceased sole appellant vide order of Court dated 20.11.2013 made in
M.P.Nos.2 of 2013 in S.A.No.885 of 2013)
(Appellant 7 to 9 brought on record as legal representatives of the
deceased sixth petitioner viz., P.Raghu vide Court order dated 10.11.2021
made in CMP.No.12051 & 12053 of 2020 in S.A.No.883 of 2013.
Vs.
A.Mani ... Respondent
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S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
PRAYER: This Second Appeal has been filed under Section 100 of CPC
against the judgment and decree made in A.S.No.49 of 2010 on the file of
the Principal Sub Court, Tiruvannamalai, Tiruvannamalai District, dated
16.03.2012 confirming the judgment and decree made in O.S.No.936 of
1995, on the file of the Principal District Munsif, Tiruvannamalai,
Tiruvannamalai District, dated 27.07.2010.
For Appellants : Mr.K.A.Ravindran
For Respondent : Mr.T.Dhanasekaran
JUDGMENT
The plaintiff viz., P.Kannammal (deceased) and her legal
representatives are the appellants herein.
2.The Second Appeal has been filed against the judgment passed in
A.S.No.49 of 2010, by the learned Judge, Principal Sub Court,
Tiruvannamalai, Tiruvannamalai District, dated 16.03.2012, wherein, the
learned Judge has confirmed the judgment made in O.S.No.936 of 1995,
by the Principal District Munsif, Tiruvannamalai, Tiruvannamalai District,
dated 27.07.2010.
https://www.mhc.tn.gov.in/judis
S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
3.Brief facts of the case:
(a).The deceased plaintiff has filed a suit in O.S.No.936 of 1995,
before the Principal District Munsif, Tiruvannamalai, Tiruvannamalai
District, for declaration of her title, injunction and recovery of possession
of “B” Schedule property. The plaint proceeds on the basis that in the
partition suit in O.S.No.1223 of 1970, the first plaintiff was allotted a
share in Survey No. 48/9 to an extent of 1/3rd share from the total extent of
1.66 acres but the respondent/defendant had purchased 2½ cents of land
from Pachiammal and Muniammal and both the vendors of the defendant
are the sisters of the first plaintiff viz., Kannammal.
(b).It is alleged that the respondent/defendant had tress passed into
the suit property and the same is the subject matter in O.S.No.936 of 1995
and the learned Judge, by an order dated 27.07.2010, has dismissed the
said suit. Aggrieved over the same, the plaintiff has preferred an appeal
suit in A.S.No.49 of 2010 before the Principal Sub Court, Tiruvannamalai,
Tiruvannamalai District and by an order dated 16.03.2012, the learned
Judge has dismissed the said appeal and confirmed the judgment passed in
the suit in O.S.No.936 of 1995. Hence, the Second Appeal.
4.This second appeal is not admitted.
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S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
5.Heard both the learned counsels and perused the materials placed
on record. The learned counsel for the respondent entered appearance.
6.After hearing both the parties, it appears that “A” Schedule
property is comprising of 5 cents in Survey No.48/9C2 and out of this 2 ½
cents bounded by East of “B” Schedule property, is the subject matter for
permanent injunction in respect of “B” Schedule property in Survey No.
48/9C2. The plaintiff wants recovery of possession of 2 ½ cents with
specific boundaries.
7.Mr.K.A.Ravindran, learned counsel for the appellant would
contend that the appellant has derived title to the suit property under the
partition suit in Exs.A2 to A4 and further he would contend that both the
Courts below have not property appreciated the Commissioner's Report
and mutation effected in the revenue records. According to the learned
counsel for the appellant, the commissioner's report and mutation of
revenue records proves the title of the appellant and both the Courts below
have erred in not applying the same.
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S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
8.It appears that the suit was initially filed with different description
of the suit property and as revealed from the Lower Appellate Court
records, there was an amendment to the schedule of the property namely
the description of the property was totally changed by the appellant. The
main contention of the appellant is rest upon the entry in the revenue
records and not on the basis of title. No doubt it is true that the appellant
name is registered in UDR. The respondent in order to prove the title and
possession to the suit property, has marked Ex.B3/Sale Deed, boundaries
of the property covered under Ex.B3 belongs to the appellant. The case of
the appellants/plaintiffs is solely rest upon Ex.A1/final decree proceedings
in O.S.No.1223 of 1970, Ex.A2/handing over the possession receipt,
Ex.A3/Rough Sketch and Ex.A4/Sale Deed executed by Muniammal and
Pachiammal in favour of Mani. As per Exs.A1 & A2 lands which were
marked as “A” schedule property, allotted to the appellant/plaintiff, the
same is admitted in the cross examination of PW1 & PW2 assumes
significance. Citing the said proceedings, based upon Ex.A3, the plaint
was filed and on the Northern side, the plaintiff claims the ownership.
After the cross examination there was an amendment in the suit schedule
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S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
property.
9.The appellant/plaintiff was allotted “A” Schedule property and
thereafter by way of amendment of pleadings, he has included the “C”
schedule property, which was allotted in favour of Muniammal under the
said partition deed and included that as a suit property. The documentary
evidence of Exs.A1 & A2 appears to be running contrary to the oral
evidence of PW1. With regard to the description of the properties and
boundaries that were allotted to the vendors of the defendant is admitted
by PW1 and PW2 and the same has been rightly observed by the Lower
Appellate Court.
10.In the description found in Ex.B3 has been admitted. Admitted
facts need not be proved as per the Section 58 of the Evidence Act. When
PW1 admits as per the final decree proceedings under Ex.A2, “C”
Schedule property was allotted to the share of Muniammal, “A” Schedule
property was allotted to deceased plaintiff viz., P.Kannammal & “B”
Schedule property was allotted to Pachiammal and hence, when the
plaintiff claims the title and recovery of “C” schedule property from the
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S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
defendant. It is not necessary for the defendant to demonstrate “A” and
“B” were not allotted to the plaintiff. The plaintiff has to prove his case.
11.The contention raised by the learned counsel for the appellants
with regard to the mutation of revenue records to prove the title of the
appellants, entry in a revenue records were not form basis of the
declaration of title deed. Being a settled position of law I held that
submissions made by the learned counsel for the appellant does not merit
any consideration. Both the Courts below have rightly come to the
conclusion and rendered a finding to the fact that the respondent/defendant
is in possession of the property as per their own title and having derived
the same from Ex.B3 which was purchased from the said Muniammal and
Pachiammal on 22.07.1989 and hence, the concurrent finding of the Courts
below as to the title and possession of the respondent/defendant appears to
be just and proper, does not warrant any interference at this appellate
stage. In this view of the matter, I find that no substantial questions of law
has been arised for consideration in this Second Appeal.
12.Accordingly, this Second Appeal stands dismissed and the
https://www.mhc.tn.gov.in/judis
S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
judgment and decree made in A.S.No.49 of 2010 by the Principal Sub
Court, Tiruvannamalai, Tiruvannamalai District, dated 16.03.2012
confirming the judgment and decree made in O.S.No.936 of 1995, the
Principal District Munsif, Tiruvannamalai, Tiruvannamalai District, dated
27.07.2010, is hereby confirmed. Consequently, connected miscellaneous
petitions are closed.
26.11.2021
Internet : Yes
dua
To
1.The Principal Sub Court,
Tiruvannamalai, Tiruvannamalai District.
2.The Principal District Munsif,
Tiruvannamalai, Tiruvannamalai District
RMT.TEEKAA RAMAN, J.
https://www.mhc.tn.gov.in/judis
S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
dua
S.A.No.885 of 2013
and M.P.Nos.1 & 2 of 2013
26.11.2021
https://www.mhc.tn.gov.in/judis
