Madras High Court
Harikrishnan vs Gurusamy on 7 October, 2021
S.A.(MD)No.673 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.673 of 2008
and
C.M.P.(MD)No.8365 of 2021
and
M.P.(MD)No.1 of 2008
1.Harikrishnan
2.Balasubramanian (died)
3.Kannabiran
4.Chellappa
5.Thangaraj
6.Sundari
7.Angala Eswari
8.Karpaga Valli (died) ... Appellants / Respondents / Plaintiffs
9.Sarojini
10.Suriya Gandhi
11.Murugesan
12.Parameswari
13.Sangupandian
14.Muthu Lakshmi
(Appellants 9 to 14 are brought on record as Lrs of the deceased
https://www.mhc.tn.gov.in/judis
1/10
S.A.(MD)No.673 of 2008
2nd appellant vide order dated 02.09.2021 made in M.P.(MD)No.2 of
2008)
15.Sivasamy
16.Thangasamy
17.Karthigeyan
(Appellants 15 to 17 are suo motu impleaded as Lrs of the deceased
8th appellant vide order dated 02.09.2021 made in S.A.(MD)No.673
of 2008)
-Vs-
1.Gurusamy
2.Saraswathy ... Respondents / Appellants / Defendants
3.Singaram ... Respondent
(3rd respondent is brought on record as Lrs of the deceased 2nd appellant
vide order dated 02.09.2021 made in M.P.(MD)No. 3 of 2008)
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the judgment and decree in A.S.No.50 of 2006 on the file of the
Subordinate Judge, Paramakudi, dated 09.01.2008 in reversing the judgment and
decree of the District Munsif Court, Paramakudi in O.S.No.129 of 2003 dated
29.03.2006.
For Appellants : Mr.S.Ramesh
for Mr.V.Raghavachari
For Respondents : Mr.T.Lajapathiroy
JUDGMENT
The plaintiffs in O.S.No.129 of 2003 on the file of the District
Munsif Court, Paramakudi, are the appellants in this second appeal.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.673 of 2008
2. The suit was filed by them for the relief of declaration and
recovery of possession from the defendants. The defendants are the
husband and wife. The case of the plaintiffs was that the suit property
forming part of a larger extent belonged to their father Angamuthu @
Chellam Pillai. Following his demise, it devolved on his sons namely
Ramachandran and the plaintiffs 1 to 4. Since Ramachandran was the
eldest male member of the family, patta was in his name. Ramachandran
passed away some time 15 years ago. His sons are none other than the
plaintiffs 5 and 6. According to the plaintiffs, the defendants have no
manner of right whatsoever over the suit property. The first defendant came
to Malayaankudi village on account of his marriage with the second
defendant. Since they did not have any roof over their head sometime in
March 1992, the plaintiffs out of humanitarian considerations permitted the
defendants to put up a hut over an extent of 2 cents of land. The defendants
taking advantage of this attempted to secure patta in their name. The
defendants apart from the two cents of land which they were permitted to
occupy tried to grab further extent of land. The plaintiffs also came to
know that the first defendant had created a document in favour of the
second defendant. In view of these developments, the plaintiffs decided to
evict the defendants from the suit property. Therefore, they filed O.S.No.
129 of 2003 seeking the aforesaid reliefs.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.673 of 2008
3. The defendants filed written statement controverting the plaint
averments. Based on the rival pleadings, the trial court framed the
necessary issues. On the side of the plaintiffs, as many as three witnesses
were examined. The second plaintiff Ayyasamy who died during the
pendency of the proceedings examined himself as P.W.1. The town
surveyor was examined as P.W.3. Ex.A1 to Ex.A6 were marked. The
defendant examined themselves as D.W.1 and D.W.2. Three other
witnesses were examined on their side. Ex.B1 to Ex.B9 were marked. An
advocate commissioner was appointed and his report and plan were marked
as Court Ex.1 and 2. After a consideration of the evidence on record, the
trial court by judgment and decree dated 29.03.2006 decreed the suit as
prayed for. Aggrieved by the same, the defendants filed A.S.No.50 of 2006
before the Sub Court, Paramakudi. By the impugned judgment and decree
dated 09.01.2008, the first appellate court set aside the decision of the trial
court and allowed the appeal and dismissed the suit. Challenging the same,
this second appeal came to be filed. Though the second appeal was filed
way back in the year 2008, till date it has not been formally admitted.
Though the records were directed to be called for, during the pendency of
the appeal, some of the appellants passed away and their legal heirs were
suo motu impleaded by this Court.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.673 of 2008
4. Heard the learned counsel appearing for the appellants. The
learned counsel appearing for the appellants submitted that due to certain
reasons, the village 'A' register could not be filed before the court below.
Since this is a public document, he wanted this Court to receive the same by
way of additional evidence. Drawing my attention to the 'A' register
extract, he contended that in the village 'A' register, the name of Rama
Chandran alone was shown in respect of old survey No.252/1. The case of
the defendants was that the first defendant purchased the suit property from
one Aathinarayanan Pillai vide Ex.B4 dated 03.05.1980. Aathinarayanan
Pillai's name is found only in respect of the property comprised in Survey
No.252/4 and not in respect of 252/1. This single circumstance is sufficient
to probabilise the case of the defendants. His core contention is that the
entire defence of the defendants is predicated on Ex.B4 dated 03.05.1980.
In the schedule set out in Ex.B4, survey number mentioned as 252/4c.
Therefore, by no stretch of imagination, can the defendants lay any claim to
the suit property. According to him, the trial court correctly appreciated the
evidence on record. Since the first appellate court had committed certain
fundamental errors, he called upon this Court to formally admit this second
appeal after framing the substantial question of law and take up for final
hearing later.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.673 of 2008
5. Per contra, the learned counsel for the respondents submitted that
no substantial question of law really arises for consideration.
6. I carefully considered the rival contentions and went through the
evidence on record. The appellants filed the suit for the relief of declaration
and recovery of possession. In the plaint, the suit property had been
described as follows:-
,uhkehjGuk; khtl;lk; gukf;Fb tl;lk; vkNd];tuk;
mQ;ry; kiyahd;FbapUg;gpy; nghd;dhj;jhs; eQ;irf;Fk; (njw;F)
Kdpahz;b uhK nghd;dhj;jhs; uhf;fd; tifawh gde;jply;
GQ;irf;Fk; (fp;of;F) nuq;fhr;rhhp tpw;gid nra;Js;s
kidaplj;jpw;Fk; (tlf;F) thjpfs; tifawhtpd; ,e;j
yf;fj;Jld; Nrh;e;j nrhj;jpw;Fk; (Nkw;F) ,jw;Fs;gl;l rh;Nt
ek;gh;.252/1 GQ;ir tp];jPuzk; Rkhh; 18 nrd;l; ,jpy; cs;s tPL
fpzW cs;gl.
7. It is true that the suit property is comprised only in Survey No.
252/1. It is equally true that Ex.B4 is a title document, under which, the
first defendant purchased the property in Survey No.252/4c. But then, the
learned counsel appearing for the respondents would contend that survey
number mentioned in Ex.B4 was incorrect and that we should rather go by
the four boundaries set out therein. It is too well settled that in the event of
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.673 of 2008
there being discrepancy between the boundaries and survey number, the
boundaries will prevail. Under Ex.B4, the first defendant had purchased
two items. The first item measures 18 cents, while the second item
measures 2 cents. The first item of the schedule set out in Ex.B4 reads as
follows:-
,uhkehjGuk; lTd;> rptfq;if hpb> gukf;Fb rg;b> jhYfh
vkNd];tuk; fpuhkj;jpy; eph; 32 eph; gl;lhtpy; rh;Nt 252/1 y;
Nkl;L jply; GQ;ir nrz;L 18 gjpndl;Lf;F khy;
uhkr;re;jpud; ,lj;Jf;F Nkw;F nt.uhkgdhh; Njhg;G nfhy;iyf;Fk;
fpof;F vd; iftrKs;s tPLk; ,jd; Nrh;f;if 2tJ
yf;f ,lj;Jf;Fk; tlf;F Mjpahd; kfs; nghd;dj;jhs;
eQ;irf;Fk; njw;F ,jw;Fs; nrz;L 18& jPh;it &.20 fhR.
8. Now the question that calls for consideration is whether the
schedule set out in Ex.B4 matches with the suit schedule and it has to be
further seen that if the vendor of D1 had the title to convey the same in
favour of the first defendant. To answer these two questions, it is necessary
to go through the evidence of P.W.1. P.W.1 admitted that to the south of the
suit property, one Rengasamy had purchased lands from Aathinarayana
Pillai and had promoted a layout. He also admitted that Aathinarayana
Pillai purchased the property lying to the south of the suit property from one
Veerapathiran Servai. He further admitted that Aathinarayana Pillai had
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.673 of 2008
purchased the properties from their pangalis and that in this regard, several
litigations took place. More importantly, P.W.1 conceded that to the north
of the suit property, Ponnathal's property is lying. He also admitted that to
the west of the suit property, there is a property belonging to one Raghavan.
The evidence of P.W.3 town surveyor who was examined by the plaintiff is
also quite significant. According to him, the old Survey No.252/1
corresponded to town survey No.7/1. Survey No.7/1 was divided into
Survey No.7/1a and 7/1b. Patta had been issued in favour of the second
defendant in respect of the town survey No.7/1a. He also stated that to the
north of the suit property, Ponnathal's land is lying.
9. From a careful reading of the evidence adduced by the plaintiffs,
one can safely come to the conclusion that from the forefather of the
plaintiffs, Aathinarayana Pillai had purchased the lands. The said
Aathinarayana Pillai sold 18 cents of land in favour of the first defendant
under Ex.B4. The first defendant in turn settled the said property in favour
of his wife namely the second defendant under Ex.B5. Even though Survey
Number mentioned in Ex.B4 is incorrect, the first item of the schedule set
out in Ex.B4 corresponds to the suit schedule. More than anything else, the
plaintiffs do not appear to have come out with a probable case. The
plaintiffs specifically stated that only in March 1992, the first defendant
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.673 of 2008
stepped into their village and after getting permission from the plaintiffs, he
put up a hut over an extent of land measuring about two cents. It is not only
improbable but positively false. The first defendant had purchased 20 cents
under two items under Ex.B4 dated 03.05.1980 from one Aathinarayana
Pillai. It is a registered document. Therefore, the case of the plaintiffs that
only in the year 1992, the first defendant entered the village for the first
time appears to be incorrect. That is why, the first appellate court after a
consideration of the evidence on record came to the conclusion that the
plaintiffs have failed to discharge the burden cast on them and allowed the
appeal filed by the respondents and dismissed the suit. No substantial
questions of law really arises for consideration. The second appeal is
dismissed. No costs. Consequently, connected miscellaneous petitions are
closed.
07.10.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Subordinate Judge, Paramakudi.
2.The District Munsif Court, Paramakudi.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.673 of 2008
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.673 of 2008
07.10.2021
https://www.mhc.tn.gov.in/judis
