Madras High Court

Jebastian vs Thomas George on 4 October, 2021

                                                                  S.A.(MD)Nos.612 & 613 of 2007

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 04.10.2021

                                                   CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                       S.A.(MD)Nos.612 & 613 of 2007
                                                    and
                                         C.M.P.(MD)No.6953 of 2021


                   Jebastian                        ... Plaintiff / Respondent / Appellant

in both second appeals

-Vs-

Thomas George ... Defendant / Appellant / Respondent in both second appeals Prayer in S.A.(MD)No.612 of 2007: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree passed in A.S.No.269 of 2005 dated 18.01.2006 on the file of the 2 nd Additional Sub- Court, Tirunelveli, reversing the judgment and decree passed in O.S.No.17 of 2001 dated 01.10.2004 on the file of the Additional District Munsif Court, Valliyoor.

Prayer in S.A.(MD)No.613 of 2007: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree passed in A.S.No.186 of 2005 dated 18.01.2006 on the file of the 2 nd Additional Sub- Court, Tirunelveli, reversing the judgment and decree passed in O.S.No.616 of 1996 dated 01.10.2004 on the file of the Additional District Munsif Court, Valliyoor.

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



                                                                      S.A.(MD)Nos.612 & 613 of 2007

                                          For Appellant     : Mr.V.Meenakshisundaram
                                                             for Mr.D.Nallathambi
                                          For Respondent    : Mr.K.Sree Kumaran Nair
                                          (in both second appeals)


                                                COMMON JUDGMENT

These two second appeals have been filed by one and the same

person namely Jebastian. He filed O.S.No.616 of 1996 on the file of the

Additional District Munsif Court, Valliyoor against the respondent herein

for the relief of partition of his share in the schedule property by metes and

bounds. He subsequently filed O.S.No.17 of 2001 seeking the relief of

declaration and injunction. The plaintiff laid a claim on 40 cents on the

western portion out of 5 acres and 51 cents in Survey No.1508 in Palavoor

Village, Avaraikulam Panchayat, Radhapuram Taluk, Tirunelveli District.

The respondent herein who was the defendant in both the suits filed written

statement controverting the plaint averments. Based on the divergent

pleadings, issues were framed. Since both the suits pertain to one and the

same property, they were tried together. The plaintiff examined himself as

P.W.1. His father was examined as P.W.2. His uncle Rajamani was

examined as P.W.3. Ex.A1 to Ex.A7 were marked. On the side of the

defendants, the power agent was examined as D.W.1 and one Sasikumar

was examined as D.W.2. Ex.B1 to Ex.B11 were marked. After considering

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S.A.(MD)Nos.612 & 613 of 2007

the evidence on record, the trial court granted preliminary decree as sought

for. O.S.No.17 of 2001 was also partly decreed. While declaratory relief

was granted, relief of injunction was denied. Aggrieved by the same, the

defendant filed A.S.No.186 of 2005 and A.S.No.269 of 2005. The plaintiff

also filed cross appeal. By the impugned judgment and decree dated

18.01.2006, the appeals filed by the defendant were allowed and the cross

appeal filed by the plaintiff was dismissed. Challenging the same, these

two second appeals have been filed. S.A.(MD)No.612 of 2007 arises out of

O.S.No.17 of 2001. S.A.(MD)No.613 of 2007 arises out of O.S.No.616 of

1996. The appeals were admitted on the following substantial questions of

law:-

“(i) Whether the finding of the lower appellate court that the suit in O.S.No.17 of 2001 is hit by Order 2 Rule 2 of C.P.C is correct?

(ii) Whether the finding of the lower appellate court that the boundaries will prevail when the survey number and the extract extent of the property have been specifically and categorically mentioned in the said deed?

(iii) When evidence of any oral statement can be admitted and considered when the terms of grant of disposition of property, which required by law to be reduced into the form of a document and since the lower appellate court hold the sale deed and gift deed in favour of the appellant are not valid merely on the basis of oral evidence of the witness?”

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S.A.(MD)Nos.612 & 613 of 2007

2. The learned counsel appearing for the appellant submitted that the

suit property is comprised in Survey No.1508. It totally measures an extent

of 5 acres and 51 cents. The claim of the plaintiff pertains to 40 cents

alone. There is no dispute that the suit property originally belonged to one

Marthanda Nadar. The plaintiff's father and his two brothers had purchased

undivided half share in the entire property vide Ex.A1 dated 27.04.1967.

Thereafter, Isravel Nadar brother of the plaintiff's father had taken 92 cents

in a oral partition that appears to have taken place among them. Thus, the

plaintiff's father Gnanasigamani Nadar and uncle Rajamani Nadar had 1

acre and 83 cents of undivided share in the entire extent of property. Out

of 1 acre and 83 cents of undivided share, they sold 1 acre and 43 cents in

favour of the defendant under Ex.B2 dated 28.03.1995. Thus, the plaintiff's

father had 20 cents of undivided share, while the plaintiff's uncle Rajamani

had 20 cents. Under Ex.A2 dated 29.10.1997, the plaintiff's father had

settled 20 cents of land which he retained in favour of the plaintiff. The

plaintiff's uncle Rajamani sold his 20 cents of land in favour of the plaintiff

under Ex.A3 dated 25.09.1996. Thus, under Ex.A2 and Ex.A3, the plaintiff

came to possess 40 cents of land in the suit property. Since formal partition

had not taken place with the defendant, the plaintiff chose to file O.S.No.

616 of 1996 claiming the relief of partition. By way of abundant caution,

he also filed the other suit seeking the relief of declaration and permanent https://www.mhc.tn.gov.in/judis

S.A.(MD)Nos.612 & 613 of 2007

injunction.

3. The learned counsel for the appellant would point out that the case

of the defendant was that he had purchased the entire 5 acres and 51 cents

in Survey No.1508 under four sale deeds namely Ex.B2, Ex.B6, Ex.B7 and

Ex.B8. The learned counsel would point out that the courts below have

erred in construing Ex.B2, even though the said Ex.B2 categorically states

that the defendant had purchased only 1 acre and 43 cents. The first

appellate court erroneously came to the conclusion that the plaintiff's father

and uncle Rajamani Nadar had sold 1 acre and 83 cents in favour of the

defendant.

4. The learned counsel appearing for the appellant submitted that the

case of the defendant that he owns the entire 5 acre and 51 cents cannot be

logically correct. He tried to demonstrate the same by pointing out that the

plaintiff's uncle Isravel Nadar had sold 92 cents of land in favour of one

Nagamani/Marthanda Nadar and the said Nagamani /Marthanda Nadar had

in-turn conveyed what was purchased by him in favour of one Chandra.

Chandra had sold only 67 cents of land in favour of the defendant vide

Ex.B6 dated 28.03.1995. Thus, Chandra was obviously retaining 25 cents

of land with her. When Chandra had not conveyed the entire 92 cents of https://www.mhc.tn.gov.in/judis

S.A.(MD)Nos.612 & 613 of 2007

land in favour of the defendant, the defendant could not have claimed that

he owned the entire 5 acres and 51 cents. He also would point out that the

defendant did not enter the witness box. Only his power agent entered the

witness box. The power agent could not have deposed in respect of the

matters which were within the personal knowledge of the defendant.

He also faulted the first appellate court for invoking Order 2 Rule 2 against

the appellant in respect of the concerned suit filed by him. The appellant

had filed notes of argument and the learned counsel took me through the

same in full. He called upon this Court to answer the substantial questions

of law in favour of the appellant and set aside the impugned judgment and

decree passed by the first appellate court and restore the decision of the trial

court.

5. Per contra, the learned counsel appearing for the respondent and

submitted that the impugned judgment and decree do not warrant

interference.

6. I carefully considered the rival contentions and went through the

evidence on record. It is well settled that when the plaintiff seeks the relief

of declaration, he must establish the same and he cannot pick holes in the

defence. The case of the plaintiff is fairly simple. His father and his two

uncles together purchased the undivided half share in Survey No.1508

under Ex.A1 dated 27.04.1967. There was a oral partition among the three https://www.mhc.tn.gov.in/judis

S.A.(MD)Nos.612 & 613 of 2007

brothers. The plaintiff's uncle Isravel Nadar was allotted 92 cents of land.

Thus, the plaintiff's father Gnanasigamani Nadar and uncle Rajamani Nadar

had with them 1 acre and 83 cents. Out of 1 acre and 83 cents, 1 acre and

43 cents was sold by them under Ex.B2 dated 28.03.1995 in favour of the

defendant. Thus, they retained 40 cents with them. This was conveyed in

favour of the plaintiff under settlement deed Ex.A2 and sale deed Ex.A3.

The plaintiff has right over the 40 cents of land.

7. The case of the defendant was that the plaintiff's father and his

brother Rajamani Nadar had sold away the entire 1 acre and 83 cents and

they did not retain any portion. Thus, the only question that arises for

consideration is whether the plaintiff's father and his brother retained 40

cents of land as claimed by the plaintiff. No doubt, Ex.B2 dated

28.03.1995 reads that 1 acre 43 cents of land was sold in favour of the

defendant Thomas George. The schedule of property set out in Ex.B2 is as

follows:-

“(1) 1508 ek;gh; Vf;5 nrz;L 51y; tlf;fla ghfj;jpy; Vw;fdNt ifyhrk; mth;fsplkpUe;J ePq;fs; fpiuak; thq;fpAs;s epyk; Nkw;fla Vf;1nr 22 ePf;fp mjd; fPoG ; wk;

ghfk; Vf;fh; 1 nrz;L 43 GuhTk;. vy;if: (tlf;F) jq;fs; epyk; (fpof;F) nry;tuh[; epyk; (njw;F) jtrp ehlhh; tifawh epyk; (Nkw;F) cq;fs; epyk;.

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S.A.(MD)Nos.612 & 613 of 2007

(2) 1510 ek;gh; Vf;5 nr 1y; tlf;fla ghfj;jpy; Nkw;fla ghfk; nrz;L 83 vz;gj;J Kd;Wvy;if: (tlf;F) rh;Nt 1508 ek;ghpy; njd;Gwk; ghfk; epyk; (fpof;F) jtrp ehlhh; tifawh epyk; (njw;F) jq;fs; epyk; (Nkw;F) rh;Nt 1509 ek;gh; epyk;

                                  (3)      1508       ek;ghpy;     kj;jpapy;       ,Uf;fpw       fpzW
                        fkiyNfhh;itapYk;                i\       fpzw;wpy;     nghwj;jg;     gl;bUf;fpw

3icwr;gp kpd;rhu Nkhl;lhh; gk;G nrl; gk;G &k; tifawhtpYk; gphptpd;wp vq;fs; tPjk; 3y;1f;Fs;sJk; i\ nrhj;J jw;fhy

khh;f;fl; kjpg;G gb &gha;.52700/- ngWkjpahFk;. i\ nrhj;J nghWj;J ve;j tpjkhd tpy;yq;fKk; ,y;iy mg;gb tpy;yq;fk; tptfhuk; vw;gl;L cq;fSf;F f];lk; e\;lk; Vw;gl;lhy; vq;fs; ,ju nrhj;Jf;fis nghWj;J cj;juthjk; nra;J NghJNthkhfTk;.”

8. If the vendors under Ex.B2 intended to retain any land with them,

the boundaries would have been described accordingly. Nowhere, the

vendors stated that they were retaining 40 cents of land. On the other hand,

their intention was to convey the entire 1 acre and 83 cents in favour of the

defendant. The plaintiff examined his father as well as his uncle as P.W.2

and P.W.3. Both of them in categorical terms deposed in evidence that they

had no intention to retain any land with them. In fact, they went to the

extent of saying that Ex.A2 and Ex.A3 were executed only at the instance

of the plaintiff. That is why, the first appellate court rightly held that under https://www.mhc.tn.gov.in/judis

S.A.(MD)Nos.612 & 613 of 2007

Ex.B2, 1 acre and 83 cents of land was sold by the plaintiff's father and

uncle in favour of the defendant since boundaries will prevail over the