Madras High Court
Ayyasamy Udyar (Died) vs Munusamy on 3 September, 2021
S.A.No.919 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.09.2021
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.919 of 2008
1. Ayyasamy Udyar (died)
2. Manickam
3. Veermani
4. Shanthi
5. Murugan
6. Ramesh
7. Minor Irusappa
8. Minor Chinnadurai ...Appellants
Appellants 7 and 8 represented by their grand mother
Manickam.
Appellants 2 to 8 brought on record as LRs of the
deceased sole appellant vi.z, Ayyasamy Udyar vide
order of court dated 01.11.2011 made in CMP
No.16885/2019 in S.A. No.919/2008.
Vs.
1. Munusamy
2. Karuppayya ... Respondents
Page 1 of 14
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
Prayer : Second Appeal filed under Section 100 of CPC, 1908 against
the decree and judgment dated 14.09.2007 passed in A.S. No.83 of 2005,
on the file of the Sub Court, Kallakuruchi, partly reversing decree and
judgment dated 20.01.2005 passed in O.S. No.75 of 1999, on the file of
the I Additional District Munsif, Kallakuruchi.
For Appellants : Ms. G. Sumitra
For R1 : Mr. P. Valliappan
for M/s. Sarvabhuman Associates
JUDGMENT
The unsuccessful plaintiff before both the courts below has
filed the present second appeal. During the pendency of this appeal, the
appellant died. Therefore, his legal heirs were impleaded as appellants 2
to 8.
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial court and in appropriate places, their ranking in
the present appeal would also be indicated.
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
3. The case of the plaintiff is that the suit properties were
his ancestral properties and patta Ex.A1 was also issued in favour of his
father late Irusappa Udayar in respect of the suit properties and other
properties. The plaintiff, being the legal heir of late Irusappa Udayar,
took possession of the properties. According to him, the first defendant,
with an illegal intention of destroying the ridge between the properties of
the plaintiff and the defendants, is attempting to interfere with the
plaintiff's possession over the suit properties and hence the suit for
declaration of plaintiff's title to the suit properties and for a consequential
relief of permanent injunction restraining the defendants, their men and
agents from interfering with his (plaintiff's) peaceful possession and
enjoyment of the suit properties.
4. The suit was resisted by the defendants on the ground that
the plaintiff is entitled to only 2/3 share in the suit properties. Their
further contention is that the suit properties originally belonged to three
brothers, namely, Ramasamy Udayar, Irusappa Udayar and Ponnusamy
Udayar, each entitled to 1/3 share in the suit properties as well as other
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
properties and that since Ponnusamy Udayar was declared insolvent, his
share was purchased by the plaintiff. Thus, the plaintiff is entitled to
have 2/3 share in the suit survey number. According to the defendants,
after the death of Ramasamy Udayar, his wife Panjali Ammal executed a
registered Will dated 19.08.1986 in the name of her grand sons, namely,
Rajamanickam and Oomadurai, born to her son Thangavelu, who in turn
executed a sale deed dated 13.08.1998 (Ex.B2) in favour of the second
defendant in respect of their share in survey Numbers 119/1, 119/4,
119/7 to 119/13. It is also their case that Thangavelu and his sons
executed a sale deed in respect of 0.05 cents in the suit property in
favour of the second defendant and thus the plaintiff is entitled to only
0.10 cents in the suit property.
5. On the basis of the above pleadings, the trial court framed
necessary issues and after full contest, dismissed the suit filed by the
plaintiff on the following grounds. .
1) The plaintiff does not have any right to the entire
extent of 0.15 cents in the suit properties.
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
2) The plaintiff, even without any pleadings in the
plaint, has stated in the proof affidavit that there
was an oral partition between Ramasamy Udayar,
Irusappa Udayar and Ponnusamy Udayar even
during the year 1969 and in the said partition the
entire extent in suit survey number was allotted to
the share of the plaintiff's father.
3) The plaintiff has not proved the alleged oral
partition between the three brothers.
4) It was also admitted by the plaintiff that patta
Ex.A1 stood in the name of plaintiff's father as he
was the eldest brother in the family.
5) Ex.A1 to Ex.A13, which are the revenue records,
shall not declare the title of the plaintiff to the
entire extent of 0.15 cents in suit survey number
and the father of the plaintiff was entitled to only
0.07 cents (0.05 + 0.02 cents). Since there is no
clear boundary description in respect of the
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
plaintiff's property, the plaintiff cannot be granted a
declaration and permanent injunction as prayed for
by him.
6. Aggrieved over the same, the plaintiff filed an appeal in A.S.
No.83 of 2005 before the Subordinate Court, Kallakuruchi, and the first
appellate court held that when the trial court has observed that the
plaintiff has title over 0.07 cents in suit survey number and also
identified the same as the property east of the property measuring 0.05
cents mentioned in Ex.B5 sale deed, it ought not to have dismissed the
suit in toto. Therefore, the first appellate court decreed the suit by
declaring the plaintiff's title to 0.07 cents in suit survey number and also
granted permanent injunction restraining the defendants from interfering
with his (plaintiff's) possession over 0.07 cents.
7. Now the second appeal is filed by the plaintiff on the ground
that when the defendants themselves had admitted that the plaintiff is
entitled to 0.10 cents in suit survey number, both the courts below had
committed an error and the first appellate court was wrong in decreeing
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
the suit only with regard to 0.07 cents. The substantial questions of law
framed in the second appeal are as follows:
1) Whether the lower appellate court was right in
requiring the appellant to prove title to the suit
property, when there was no denial by the respondents
to decree the suit with respect to 10 cents out of 15
cents?
2) Whether Ex.A1 (patta) is a valid document to prove
possession of the suit property?
8. At the outset, it may be observed that the plaintiff is entitled
to 0.05 cents in the suit survey numbers, which, according to both the
parties, is the 1/3rd share of plaintiff's father. A certified copy of the sale
deed Ex.B4 executed by the official receiver in favour of the plaintiff's
father, shows that the plaintiff's father purchased 1/2 share in suit survey
No.119/5 of Kurur village, Kallakuruchi Taluk, measuring 0.04 cents
(suit survey numbers). Thus, the plaintiff is entitled to 0.07 cents in
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
survey No.119/5. But, the contention of the learned counsel appearing
for the appellant is that since the defendants had admitted plaintiff's title
to 0.10 cents in suit survey No.119/5, the first appellate court had
committed an error by decreeing the suit only with regard to 0.07 cents.
She also adverted the attention of this court to the recitals in Ex.B4 and
contended that what was conveyed to the plaintiff's father in survey
No.119/5 of Kurur village, Kallakuruchi Taluk, is 0.04 cents and not
0.02 cents as held by both the courts below. A perusal of entire Ex.B4
clearly shows that only 1/2 share in survey No.119/5 measuring 0.04
cents was conveyed to the plaintiff's father. It is pertinent to point out
that the suit is filed by the plaintiff for a declaration of his title to the suit
properties and for a consequential relief of permanent injunction. The
plaintiff has to prove his title to the suit properties by adducing
acceptable evidence.
9. Incidentally, the plaintiff in his evidence as P.W.1, had
deposed that there was a partition even during the year 1961 and that the
suit property was allotted to the share of his father. It is seen from the
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
plaint that there is no specific pleading with regard to the above aspect.
However, both the courts below had analysed this particular evidence of
P.W.1 even without any pleading. In fact, it was argued before the first
appellate court that since the defendants are third parties to the partition,
no pleading is necessary with regard to the partition that took place in the
family of the plaintiff. The first appellate court, in its judgment dated
14.09.2007, has observed thus:
"19. The plaintiff is bound to prove the partition and also to
specify, what are the shares, specifically allotted to his
family by way of oral partition. According to the plaintiff's
proof affidavit, he admits that since 1970 his father had
been in exclusive enjoyment of the property and also patta
had been issued. Similarly other brother also if oral
partition pleaded is true, would enjoy the properties allotted
to them exclusively. But, on the side of the defendant, Ex.B4
has been marked. Ex.B4 is, certified copy of sale certificate
given by the Joint II Sub-Registrar, Kallakurichi during the
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
year 1974. On perusal of Ex.B4, the properties stated to be
with the Official receiver are all shown as undivided
property. And on perusal of each description of property,
only 1/3rd share of Ponnusamy Udayar has been brought for
sale. Hence, as per the evidence of the plaintiff, if only oral
partition had been effected during the year 1969, and if the
entire suit property had been allotted to the share of
plaintiff's father Irusappa Udayar, who is alleged to have
been in exclusive possession and enjoyment of the suit
property, why 1/3rd share of the suit property has been
brought for court sale, with regard to Ponnusamy Udayar's
share? Each and every description of property in Ex.B4,
relates only to 1/3rd share of Ponnusamy Udayar. Hence,
the contention of the plaintiff is that, since 1970, the
properties were exclusively enjoyed by way of partition has
been negatived by Ex.B4, which is dated 1974. Hence, the
version of the defendant that, 1/3rd share in each property
was allotted to each brother has become a more probable
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
situation in view of Ex.B4. Moreover, plaintiff's father
Irusappa Udayar has purchased 0.02 cents in suit Survey
No.119/5, when Ponnusamy Udayar's share had come for
court sale. If Irusappa Udayar has been allotted the entire
suit property, why he has not taken any steps to remove the
suit item from sale by the official receiver. In contra, he has
purchased the 0.02 cents. There is no pleading or evidence
on the side of the plaintiff to explain the reason for
purchase of 0.02 cents by way of court sale. Hence, the
plaintiff is estopped from pleading that each of the brother
were not allotted 1/3rd share in the suit property. Moreover,
why the plaintiff's father has not taken any steps also there
is no explanation to transfer the patta in his name since
1969 to 1982?
....."
The above observation of the first appellate court is based on
sound reasoning and I do not find any cause to interfere with the same.
The first appellate court further observed in paragraph 28 that the lower
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
appellate court should not have dismissed the suit in toto since as per oral
and documentary evidence adduced on both sides, the plaintiff is entitled
to 0.07 cents including the property of 0.02 cents on the eastern side of
0.05 cents mentioned in Ex.B5 sale deed. The contention of the
appellant/plaintiff is that based on the admission made by the defendant,
declaration of his title to 0.10 cents should be granted in his favour. Such
an argument cannot be accepted in the light of the fact that the plaintiff's
father purchased only 0.02 cents out of 0.04 cents in survey No.119/5 of
Karur Village and as per the partition between the brothers, he is entitled
to another 0.05 cents in the suit survey number. The plaintiff knows the
extent of property, which his father purchased through Ex.B4 and this
document was not also filed on his side. On the contrary, a certified copy
of the sale deed dated 28.11.1974 (Ex.B4) executed by the official
receiver in favour of the plaintiff's father was filed only on the side of the
defendants. The plaintiff's father purchased 0.02 cents in Survey
No.119/5 in the court auction sale consequent upon the declaration of
one of his brothers as insolvent. Therefore, the plaintiff cannot seek for a
declaratory decree for more extent than what he is entitled to. The
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
observations of the first appellate court are perfectly in order and in view
of the same, the substantial questions of law 1 and 2 are answered against
the appellant.
10. In the result,
i. the second appeal is dismissed. No costs.
ii. the decree and judgment dated 14.09.2007 in A.S.
No.83 of 2005, passed by the learned Subordinate
Judge, Kallakuruchi, are upheld.
iii. the decree and judgment dated 20.01.2005 in O.S.
No.75 of 1999, passed by the learned I Additional
District Munsif, Kallakuruchi, are set aside.
03.09.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
https://www.mhc.tn.gov.in/judis/
S.A.No.919 of 2008
R. HEMALATHA, J.
bga
To
1. The Subordinate Court, Kallakuruchi.
2. The I Additional District Munsif, Kallakuruchi.
3. The Section Officer, VR Section, High Court, Madras
S.A.No .919 of 2008
03.09.2021
https://www.mhc.tn.gov.in/judis/
