Madras High Court
Vijayalakshmi vs Muthu on 5 October, 2021
S.A.(MD)No.1272 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.1272 of 2005
1.Vijayalakshmi
2.Meenakshi ... Appellants
Vs.
1.Muthu
2.Gopal (Died)
3.Jeyalakshmi
4.Bharath
5.Balamurugan
6.Ramadass ... Respondents
(Respondents 3 to 6 are suo motu impleaded as
LRs of the deceased 2nd respondent vide order
dated 15.09.2021 made in S.A.(MD)No.1272 of
2005 by GRSJ)
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 15.04.2005 passed in A.S.No.11 of 2003
on the file of the Sub Court, Sivagangai, reversing the judgment and decree
dated 18.07.2001 passed in O.S.No.112 of 2000 on the file of the Principal
District Munsif, Sivagangai.
For Appellants : Mr.G.Prabhu Rajadurai
For Respondents : Mr.S.Srinivasa Raghavan,
For R1, R3 to R6.
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S.A.(MD)No.1272 of 2005
JUDGEMENT
The plaintiffs in O.S.No.112 of 2000 on the file of the Principal District
Munsif Court, Sivagangai are the appellants in this second appeal. The
plaintiffs filed the said suit seeking the relief of declaration and permanent
injunction. The case of the plaintiffs is that the suit property comprised in
Survey No.328/8-B in Velangapatti Village, Pudhupatti Group, Sivagangai
Taluk, measuring about 90 cents originally belonged to one Udaiyar Konar.
The said Udaiyar Konar vide Ex.A1/sale deed dated 11.12.1957 sold two acres
of land in favour of the plaintiffs' father namely, Sonaimuthu Konar and the
father of the first defendant namely, Alagu Konar. Sonaimuthu Konar and
Alagu Konar were brothers. The suit property was part of the property sold by
Udaiyar Konar under Ex.A1 dated 11.12.1957. Sonaimuthu Konar and Alagu
Konar jointly enjoyed the property till 1980. On 23.10.1980, the brothers
divided the property in the presence of Panchayatars. The minutes drawn on
the said occasion was marked as Ex.A10. As per the said partition, the
southern portion of the property purchased under Ex.A1 was allotted to the
plaintiffs' father while the northern portion was allotted to the father of the first
defendant. During UDR, the plaintiffs' father's name was entered in the
revenue records. Following his demise, the names of the plaintiffs were also
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S.A.(MD)No.1272 of 2005
duly entered. Since the defendants were staking a rival claim on the suit
property, the plaintiffs were constrained to institute the said suit.
2.The second defendant is none other than the son of the first defendant.
They filed written statement controverting the plaint averments. The stand of
the defendants was that the suit property originally belonged to their mother
namely, Rakku. Following her demise, suit property devolved on the first
defendant. Ex.A1 has nothing to do with the suit property. The defendants
further contended that they are in possession of the suit property. They called
for dismissal of the suit. Based on the rival pleadings, the trial Court framed as
many as six issues.
3.The first plaintiff namely, Vijayalakshmi examined herself as P.W.1 and
three other witnesses were examined on her side. P.W.3 is said to be one of the
attestors of Ex.10. Exs.A1 to A13 were marked. The first defendant examined
himself as D.W.1 and one Mani was examined as D.W.2. Exs.B1 to B14 were
marked.
4.After a consideration of the evidence on record, the trial Court by
judgment and decree dated 18.07.2001 decreed the suit as prayed. Aggrieved
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S.A.(MD)No.1272 of 2005
by the same, the defendants filed A.S.No.11 of 2003 before the Sub Court,
Sivagangai. The first appellate Court by the impugned judgment and decree
dated 15.04.2005 reversed the decision of the trial Court and allowed the
appeal and dismissed the suit. Challenging the same, this second appeal came
to be filed by the plaintiffs.
5.The second appeal was admitted on the following substantial questions
of law:-
1)Whether the lower appellate Court erred in law by
finding that there is no clear evidence regarding the
boundaries in Ex.A1 sale deed specially when the trial Court
on a detailed discussion had found that the boundary in
Exs.A1 and A10 would match the suit property which is
perverse in nature?
2)Whether the lower appellate Court erred in law in
deciding the case on a sole ground of a typographical error in
Ex.A9 without the appellants been put on notice about the
said ground and provided with an opportunity to explain the
same?”
6.Heard the learned counsel on either side.
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S.A.(MD)No.1272 of 2005
7.The learned counsel appearing for the appellants submitted that Ex.A1
is a registered document. It is obvious that the plaintiffs' father namely,
Sonaimuthu Konar and the father of the first defendant namely, Alagu Konar
had purchased some two acres of land from one Udaiyar Konar. The property
purchased under Ex.A1 was bounded on the two sides by the lands belonging
to the mother of the first defendant. Since there arose dispute between the
brothers, the property was partitioned and the southern portion was allotted to
the father of the plaintiffs. Ex.A10 reflects the said partition. Based on the
same, the plaintiffs' father's name was duly entered in the revenue records.
Following his demise in the year 1989, the names of the plaintiffs were also
later entered. The learned counsel therefore submitted that the trial Court
rightly decreed the suit and the first appellate Court by a cryptic judgment had
reversed the same. He called upon this Court to answer the substantial
questions of law in favour of the appellants and set aside the impugned
judgment and restore the decision of the trial Court.
8.Per Contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree do not call for any
interference.
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S.A.(MD)No.1272 of 2005
9.I carefully considered the rival contentions and went through the
evidence on record. The suit property has been described in the palint is as
under:-
“rptfq;if khtl;lk;> rptfq;if jhYfh> GJg;gl;b
F&g;> Ntshq;fg;gl;b fpuhkj;jpy; 1k; gpujpthjp mg;gh
ghfj;Jf;F xJf;fg;gl;l GQ;irf;Fk; (njw;F)> GJg;gl;b
mq;fKj;J Nrh;itaplk;> 1k; gpujpthjp fpiuak; thq;fpa
GQ;irf;Fk; (tlf;F)> rpl;L ehr;rpahh; eQ;irf;Fk;> uhf;F
GQ;irf;Fk; (Nkw;F)> uhf;F GQ;irf;Fk;
(fpof;F)> ,jw;Fs;gl;l GQ;ir tp];jPuzk; 0.90 nrz;L
A.b.Mh;.rh;Nt ek;gh; 328/8-gp A.b.Mh;.gl;lh ek;gh.334.”
10.The only question that calls for determination is whether the suit
property is part of the larger extent of property sold under Ex.A1 dated
11.12.1957. Ex.A1 is no doubt a registered document and as such would carry
a presumption of validity as regards execution.
11.It is relevant to note here that in Ex.A1, there is no mention about the
survey number. Likewise in Ex.A10/panchayat muchalika also, there is no
mention of any survey number. Thus, it is little difficult to tally the schedule of
property set out in Ex.A1 with the suit schedule. The question is whether on a
balance of probabilities, the plaintiffs had established that the property
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S.A.(MD)No.1272 of 2005
purchased under Ex.A1 includes the suit property. Since both sides have
adduced evidence, the burden of proof pales into insignificance. Now, let me
examine the evidence adduced by the defendants. The defendants have marked
Ex.B2. Ex.B2 is the rough patta standing in the name of Rakku, the mother of
the first defendant. Ex.B2 is of the year 1956. From Ex.B2, one can notice that
5 acres and 50 cents of land comprised in Survey No.328/8 is that of Rakku.
Ex.B3 is the patta passbook issued in favour of Rakku in the year 1972. Ex.B4
is the proceeding dated 28.08.1963 issued by the jurisdictional Thasildar
ordering grant of loan in favour of Rakku. The said document reflects the
name of Rakku as the owner of the land measuring 5 acres 50 cents in Survey
No.328/8 in Pudhupatti Village. Ex.B5 is a similar order permitting digging of
well issued in the year 1962 by the jurisdictional Thasildar. Ex.B6 is dated
25.11.1968. Under Ex.B6, Rakku had given her consent for mortgaging the
suit property in favour of the local co-operative bank. Ex.B7 are the receipts
indicating the clearance of the said liability by Rakku. Ex.B8, dated
30.03.1961 is the document whereby Rakku had offered the property
comprised in Survey No.328/8 measuring 5 acres and 50 cents of land in favour
of one Kalliammal Nachiyar. Ex.B9 is another registered document whereby
Rakku had offered the entire property comprised in Survey No.328/8 as
security. Ex.B10 is the patta issued in favour of the first defendant and his
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S.A.(MD)No.1272 of 2005
brother. Ex.B11 is another important document. It is the extract of the SLR.
It can been seen therefrom that the name of the defendants' mother, Rakku was
mentioned in the pre-settlement. During settlement made sometime in the year
1957, her name was entered in the settlement register. Thus, the defendants
have demonstrated by overwhelming evidence that the suit property originally
stood only in the name of Rakku, the mother of the first defendant and she had
been dealing with the same absolutely. On the other hand, Ex.A10 appears to
be a tampered document. I perused the original and there is an erasure and
overwriting with a different ink. The plaintiffs putforth a case that before
partition, the father of the first defendant namely, Alagu Konar tried to deal
with the property as if it was his own and that their father lodged an objection
vide Ex.A9. Ex.A9 is dated 27.05.1974. In the said objection letter, there is a
reference to a panchayat muchalika. Even according to the plaintiffs, the
panchayat muchalika is dated 23.10.1980. That is why, the first appellate Court
frowned upon the case putforth by the plaintiffs. On a careful consideration of
the evidence on record, I independently come to a conclusion that defendants
have clearly established that the suit property was not the one purchased by the
plaintiffs' father and his brother Alagu Konar under Ex.A1. The first appellate
Court had correctly appreciated the facts and had come to the right conclusion.
Its finding cannot be considered as perverse.
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S.A.(MD)No.1272 of 2005
The substantial questions of law are answered against the appellants. The
second appeal is dismissed. No costs.
05.10.2021
Index : Yes / No
Internet : Yes/ No
ias
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 Sub Court,
Sivagangai.
2.The Principal District Munsif Court,
Sivagangai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.1272 of 2005
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.1272 of 2005
05.10.2021
https://www.mhc.tn.gov.in/judis
