Madras High Court
K.Selvam vs Thangamari Joice on 25 October, 2021
S.A.(MD)No.382 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.382 of 2007
1.K.Selvam
2.K.Ravi
3.K.Muthiah ... Plaintiff / Appellants / Appellants
-Vs-
Thangamari Joice ... Defendant / Respondent / Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the judgment and decree of the Subordinate Court, Palani, dated
28.06.2006 in A.S.No.47 of 2004 confirming the judgment and decree passed by
the District Munsif Court, Palani, dated 13.08.2004 in O.S.No.463 of 1999.
For Appellants : Mr.S.Anand Chandrasekar
for M/s.Sarvabhauman Associates
For Respondent : Mr.S.Madhavan
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S.A.(MD)No.382 of 2007
JUDGMENT
The plaintiffs in O.S.No.463 of 1999 on the file of the District
Munsif Court, Palani are the appellants in this second appeal.
2. The case of the appellants was that the suit property forming part
of a larger extent originally belonged to their grandfather namely
Shanmugam Servai. He executed Ex.A1-settlement deed dated 10.12.1964
in favour of their mother Sangilikaruppayi Ammal settling one acre in the
eastern extremity of Survey No.101/1. Sangilikaruppayi Ammal was
enjoying the said property so settled in her favour by paying the kist extract.
Even during her life time, she had also alienated a substantial portion.
According to the plaintiffs, the suit property however remained out of the
said one acre of land settled in favour of their mother. Since the defendant
tried to interfere with their possession and enjoyment based on an
un-sustainable title document, they were constrained to file the said suit
seeking the relief of permanent injunction.
3. The respondent filed the written statement controverting the plaint
averments. The stand of the respondent was that Shanmugam Servai also
had a son by name Karuppaiah Servai. Karuppaiah Servai was allotted
51 ½ cents by Shanmugam Servai in a family partition evidenced by Ex.A5
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S.A.(MD)No.382 of 2007
dated 28.07.1966. The said Karuppaiah Servai sold 22 ¼ cents of land in
favour of one Rathinabai under Ex.B1-sale deed dated 18.02.1974. The
said Rathinabai sold 7 ¾ cents of land under Ex.B2 dated 05.09.1975 in
favour of the defendant. The suit property is covered under Ex.A2. That is
the stand taken by the defendant.
4. Based on the divergent pleadings, the trial court framed the
necessary issues. The first plaintiff examined himself as P.W.1 and marked
Ex.A1 to Ex.A5. The defendant examined herself as D.W.1. One Jebadurai
was examined as D.W.2. Ex.B1 to Ex.B4 were marked. After a
consideration of the evidence on record, the trial court by judgment and
decree dated 13.08.2004 dismissed the suit. Aggrieved by the same, the
plaintiffs filed A.S.No.47 of 2004 before the Sub Court, Palani. The first
appellate court by the impugned judgment and decree dated 28.06.2006
confirmed the decision of the trial court and dismissed the appeal.
Challenging the same, this second appeal came to be filed.
5. The second appeal was admitted on 10.01.2008 on the following
substantial question of law:-
“Whether the judgment and decree of the trial court as well as
first appellate court is erroneous on account of misconstruction of
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S.A.(MD)No.382 of 2007
document produced on either side”
6. The learned counsel appearing for the appellants reiterated the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial question of law in favour of the appellants
and set aside the judgment and decree passed by the courts below and
decree the suit as prayed for.
7. His pointed contention is that in a suit for injunction, the plaintiffs
are obliged to establish their possession over the suit property. The
plaintiffs have more than discharged the burden cast on them by marking
Ex.A2 which is the extract of the town survey filed register. He would also
point out that the title document filed by the defendant clearly mentions the
plaintiffs' property as their eastern boundary.
8. Per contra, the learned counsel appearing for the respondent
submitted that the impugned judgment and decree do not warrant any
interference. The learned counsel for the respondent took me through the
testimony of P.W.1. He pointed out that the plaintiffs' mother was given one
acre of land in Survey No.101/1 by her father on the eastern extremity. The
suit property measures only 4508 square feet. The plaintiffs have admitted
that the remaining extent of land belonging to them had already been sold.
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S.A.(MD)No.382 of 2007
If that be so, the plaintiffs ought to have marked all the relevant documents
and that is how, they could have traced their title. He would further point
out that the courts below have concurrently found the issue of possession
against the plaintiffs. This may not be justified in interfering with such a
concurrent finding in exercise of jurisdiction under Section 100 of C.P.C.
9. I carefully considered the rival contentions and went through the
evidence on record. The suit on hand is one for injunction. Both sides
have filed the title documents. While the plaintiffs had filed Ex.A1 dated
10.12.1964, the defendant had filed Ex.B2 dated 05.09.1975. From a
careful perusal of the evidence marked on either side, one can easily come
to the conclusion that the plaintiffs' grandfather Shanmugam Servai owned
4 acres and 23 cents in Survey No.101/1 in Sivagiripatti Village, Palani. He
had settled one acre of land in the eastern extremity of the said survey
number in favour of the plaintiffs' mother namely Sangilikaruppayi Ammal.
In the family of Shanmugam Servai, a partition took place and the same was
also reduced into writing under Ex.A5 dated 28.07.1966. There is
consensus between both the parties that Karuppaiah Servai son of
Shanmugam Servai was allotted 51 ½ cents in Survey No.101/1 on the
western side. Obviously, the land allotted in favour of Karuppaiah Servai
under Ex.A5 lay to the west of what was settled in favour of
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S.A.(MD)No.382 of 2007
Sangilikaruppayi Ammal under Ex.A1. The said Karuppaiah Servai son of
Shanmugam Servai sold 22 ¼ cents out of what was allotted to him under
Ex.A5 to one Rathinabai under Ex.B1-sale deed dated 18.02.1974. In
Ex.B1, the four boundaries for 51 ½ cents is mentioned. But the eastern
boundary is mentioned as the property of Sangilikaruppayi Ammal and
Deivanai Ammal. But the four boundaries for what was sold in favour of
Rathinabai is not clearly mentioned. The said Rathinabai sold 7 ¾ cents in
favour of the defendant under Ex.B2 dated 05.09.1975. As per the four
boundaries set out in Ex.B2, the properties purchased by the defendant was
bounded on the north by a scheme road, on the east by Sangilikaruppayi
Ammal, on the south by Rathinabai and on the west by a place of worship.
Thus, from Ex.B2, one can safely come to the conclusion that the plaintiffs'
mother's property was shown as eastern boundary. A perusal of the
testimony of P.W.1 shows that he has not been able to demonstrate as to
how one acre of land settled in favour of his mother under Ex.A1 got
reduced to a mere 4508 square feet. The plaintiffs ought to have marked all
the other documents whereby the remaining extent was alienated. In such
an event, the plaintiffs could have convincingly demonstrated their title
over the suit property. But they have not done so. It is true that in a suit for
injunction, the plaintiffs will have to show only their possession and not
anything else.
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S.A.(MD)No.382 of 2007
10. I am more than satisfied that the plaintiffs have demonstrated
their possession over the suit property by marking Ex.A2. Ex.A2 is the
copy of the town survey filed register. The genuineness or correctness of
Ex.A2 has not been seriously challenged by the defendant. I can safely
conclude that the suit property corresponds to the sketch which has been
drawn to scale by the municipal authority. While the old survey number is
101/1B, the current survey number is 101/29. The names of the plaintiffs
namely Selvam, Muthaiah and Ravi are mentioned in the said register. Of-
course, it describes them as the sons of Karuppaiah Servai. It is clarified by
the counsel for the appellants that while they had a paternal uncle by name
Karuppaiah Servai, their father was also known as Karuppaiah Servai.
Ex.A1 was issued prior to the institution of the suit. It is also seen that the
suit property is a vacant site on the date of filing of the suit. The plaintiffs
have convincingly demonstrated that they had possession over the suit
property. On the other hand, what was filed by the defendant was only
Ex.B3. Ex.B3 is a mere certificate which was issued probably on the
strength of Ex.B2 that the suit property has not been encumbered. Ex.B3
does not indicate that the defendant had possession over the suit property.
At the same time, I cannot decree the suit as prayed for. If the plaintiffs had
convincingly demonstrated their title over the suit property, I would have
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S.A.(MD)No.382 of 2007
unhesitatingly decreed the suit in the light of Ex.A2.
11. Since the plaintiffs had only shown their possession and not
demonstrated their title, I can only grant decree in their favour restraining
the defendant from dispossessing the plaintiffs except in the manner known
to law. In other words, while the plaintiffs' possession stands protected as
mentioned above, the issue of title is left open. The second appeal is
disposed of. No costs.
25.10.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Subordinate Court, Palani.
2. District Munsif Court, Palani.
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.382 of 2007
G.R.SWAMINATHAN.J.,
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.382 of 2007
Judgment made in
S.A.(MD)No.382 of 2007
25.10.2021
https://www.mhc.tn.gov.in/judis
