Balasubramaniyan vs Maruthaiyamattaiyar
2021 Latest Caselaw 21505 Mad

                                                                             S.A.(MD)No.903 of 2007

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 27.10.2021

                                                      CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                             S.A.(MD)No.903 of 2007



                   Balasubramaniyan                 ... Plaintiff / Respondent / Appellant


                                                      -Vs-


                   1.Maruthaiyamattaiyar
                   2.Balasubramaniyan
                   3.Marimuthu
                   4.Nagaiya                      ... Defendants / Appellants / Respondents


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,

                   against the judgment and decree of the Sub Court, Pudukkottai in A.S.No.100 of

                   2006 dated 25.06.2007 reversing the judgment and decree of the District Munsif

                   Court cum Judicial Magistrate, Keeranur in O.S.No.41 of 2000 dated 01.11.2004.

                                      For Appellant          : Mr.V.Singam



                                      For Respondents         : Mr.P.Ganapathisubramanian



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


                   1/6
                                                                             S.A.(MD)No.903 of 2007

                                                     JUDGMENT

The plaintiff in O.S.No.41 of 2000 on the file of the District Munsif

Court, Keeranur is the appellant in this second appeal.

2. The case of the appellant / plaintiff is that the suit property

belonged to his father Rasumattaiyar. There was a oral partition in the

family and the suit property was allotted in his favour. The plaintiff would

further assert that he is in possession of the suit property. Since the

defendants were interfering with his possession and enjoyment, he was

constrained to file the said suit. The defendants filed the written statement

controverting the averments. Based on the divergent pleadings, the trial

court framed the necessary issues. The plaintiff examined himself as

P.W.1. Two other witnesses were examined on his side. Ex.A1 to Ex.A18

were marked. The first defendant examined himself as D.W.1 and four

other witnesses were examined on the side of the defendants. The

defendants also marked Ex.B1 which is the sale deed executed in favour of

the first defendant by the plaintiff's brother Thangamani. After a

consideration of the evidence on record, the trial court by judgment and

decree dated 01.11.2004 decreed the suit as prayed for. Aggrieved by the

same, the defendants filed A.S.No.100 of 2006 before the Sub Court,

Pudukkottai. The first appellate court by the impugned judgment and https://www.mhc.tn.gov.in/judis

S.A.(MD)No.903 of 2007

decree dated 25.06.2007 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. The second appeal was admitted on 03.10.2007 on the

following substantial question of law:-

“Whether the first appellate court is legally correct in accepting

Ex.B1 document which is hit by lis-pendens under Section 52 of the

Transfer of Property Act?”

3. The learned counsel appearing for the appellant reiterated all 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 appellant

and set aside the impugned judgment and decree and restore the decision of

the trial court.

4. Per contra, the learned counsel appearing for the respondents

submitted that the impugned judgment and decree passed by the first

appellate court do not call for interference. He drew my attention to the

plaint averments. The plaintiff himself had stated that the suit property

belonged to his father and that some 14 years before the filing of the suit, a

sum of Rs.1,000/- was availed as loan from the defendants and that the

defendants had taken a signed blank documents from the plaintiff's family. https://www.mhc.tn.gov.in/judis

S.A.(MD)No.903 of 2007

The learned counsel for the respondents wants this Court to infer from this

pleading putforth by the appellant that there was some kind of transaction

between the parties in this regard. That is why, the plaintiff's brother

actuated by the sense of fairness had executed Ex.B1. This is a mere

confirmation of the sale that had already taken place. He also firmly

asserted that the suit property is presently in the physical possession of the

fourth respondent herein.

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

evidence on record. There is no dispute that the suit property originally

belonged to Rasumattaiyar. There is no proof that the suit property was

allotted in favour of the plaintiff in any oral partition. But then, the suit is

only for the relief of permanent injunction and the plaintiff has only to

demonstrate his possession over the suit property. The plaintiff had marked

Ex.A16 patta which reflects the name of the plaintiff. He had already

marked the adangal extract Ex.A17. It is seen that in the place of plaintiff's

father Rasumattaiyar, the plaintiff's name had been substituted. On the

other hand, there is absolutely no evidence forthcoming from the defendants

to show their possession over the suit property. Even according to the

defendants, Ex.B1was executed only by the brother of the plaintiff namely

Thangamani. The defendants have not taken any sale deed from https://www.mhc.tn.gov.in/judis

S.A.(MD)No.903 of 2007

Rasumattaiyar. Therefore, Ex.B1 could have conferred at best half share for

the defendants in the suit property.

6. While there is a considerable evidence on the side of the plaintiff,

there is a complete paucity of evidence on the side of the defendants as

regards possession. Ex.B1 also came into existence only during the

pendency of the suit. The courts below failed to take note of the evidence

regarding possession filed by the plaintiff. The substantial question of law

is answered in favour of the plaintiff. The impugned judgment is set aside.

I must also record the submission of the learned counsel appearing for the

defendants that Ex.A16 came into existence after the filing of the suit. The

right of the defendants to institute a suit for partition based on Ex.B1 is left

open. This second appeal is accordingly allowed. No costs.

27.10.2021

Internet : Yes/No Index : Yes/No rmi To

1.The Sub Court, Pudukkottai.

2.The District Munsif Court cum Judicial Magistrate, Keeranur.

G.R.SWAMINATHAN.J., https://www.mhc.tn.gov.in/judis

S.A.(MD)No.903 of 2007

rmi

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

Judgment made in S.A.(MD)No.903 of 2007

27.10.2021

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