Madras High Court
Ramaiah vs Mary Josephin on 6 September, 2021
S.A.(MD)Nos.806 and 807 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.806 and 807 of 2006
1.Ramaiah
2.R.Parameswari
3.Ravi
4.E.Lakshmi
5.Rajkumar
6.Ramkumar ... Appellants in both S.As
(A2 to A6 are brought on record as LRs of
the deceased sole appellant vide order
dated 05.03.2021 made in C.M.P.(MD)Nos.
7126 and 7127 of 2020 and C.M.P.
(MD)Nos.2290 and 2291 of 2021 in S.A.
(MD)Nos.806 and 807 of 2006 by NSKJ)
Vs.
Mary Josephin ... Respondent in both S.As
Prayer in S.A.(MD)No.806 of 2006 : Second Appeal filed under Section 100
of Civil Procedure Code, against the judgment and decree dated 27.06.2006
passed in A.S.No.135 of 2005 on the file of the Additional Subordinate Court,
Tenkasi, reversing the judgment and decree dated 09.12.2003 passed in
O.S.No.75 of 2000 on the file of the District Munsif Court, Sengottai.
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S.A.(MD)Nos.806 and 807 of 2006
Prayer in S.A.(MD)No.807 of 2006 : Second Appeal filed under Section 100
of Civil Procedure Code, against the judgment and decree dated 27.06.2006
passed in A.S.No.31 of 2006 on the file of the Principal Subordinate Court,
Tenkasi, reversing the judgment and decree dated 13.10.2005 passed in
O.S.No.35 of 2004 on the file of the District Munsif Court, Sengottai.
(In both S.As)
For Appellants : Mr.T.Lajapathi Roy,
For Mr.S.Rajasekar.
For Respondent : Mr.V.Meenakshisundaram,
For Mr.D.Nallathambi.
COMMON JUDGEMENT
Ramaiah filed S.A.(MD).Nos.806 and 807 of 2006. Both the appeals
relate to the same subject matter. The appellant/Ramaiah filed O.S.No.203 of
2000 before Sub Court, Tenkasi for the relief of declaration and permanent
injunction in respect of suit second schedule. Mary Josephine was shown as
the sole defendant therein. It was later transferred to the file of District Munsif
Court, Sengottai and renumbered as O.S.No.35 of 2004. Earlier, Mary
Josephine filed O.S.No.75 of 2000 before the District Munsif Court, Sengottai
seeking the relief of declaration and permanent injunction in respect of the suit
schedule property. Unfortunately, the suits were not tried together or even
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S.A.(MD)Nos.806 and 807 of 2006
simultaneously. Evidence was adduced separately and judgments were also
pronounced one after the other. This was because Mary Josephine remained
ex-parte initially in the suit filed by Ramaiah. The trial Court dismissed the suit
filed by the Mary Josephine and decreed the suit filed by Ramaiah. Aggrieved
by the same, Mary Josephine filed A.S.No.135 of 2005 before the Additional
Sub Court, Tenkasi and A.S.No.31 of 2006 before the Principal Sub Court,
Tenkasi. By the impugned Judgments and decrees dated 27.06.2006, the first
appellate Courts allowed the appeals filed by Mary Josephine. Aggrieved by
the same, Ramaiah filed these second appeals. S.A.(MD)No.806 of 2006 arises
out of O.S.No.75 of 2000, while S.A.(MD)No.807 of 2006 arises out of
O.S.No.35 of 2004.
2.The second appeals were admitted on the following substantial
questions of law:-
“(i) Whether in law are not the decree and judgment
of the lower appellate court vitiated for non compliance of
Order 41 Rule 31 of the Civil Procedure Code and
consequently it is not judgment at all vide 1997 (1) L.W.
Page No.704 (DB)?
(ii) Whether in law has not the lower appellate court
overlooked that entries in the revenue records are not
conclusive and cannot prove title by themselves? and
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S.A.(MD)Nos.806 and 807 of 2006
(iii) Whether in law has not the lower appellate court
misconstrued the document and misread the evidence
resulting in perverse findings?”
3.Heard the learned counsel on either side.
4.Though the suit second schedule in O.S.No.35 of 2004 and suit
schedule in O.S.No.75 of 2000 may apparently appear to be different, in
substance, both the parties are fighting for the same piece of land measuring
5 ½ cents. The said piece of land formed part of a larger extent of land
measuring 2 acres and 47 cents purchased by one Vellayutham Pillai from
Madasamy Thevar under Ex.A14 dated 26.08.1886 in O.S.No.75 of 2000.
After purchase of a said land, Vellayutham Pillai sold 7 ½ cents of land back to
Madasamy Thevar under Ex.A13 dated 27.08.1986. The description of the
property sold to Madasamy Thevar under Ex.A13 is as follows:
“North and West to Vellayutham Pillai's land,
East to Tenkasi-Madurai road,
South to the plots.”
5.Thereafter, Vellayutham Pillai sold 5 ½ cents of land in favour of one
Arumuga Nainar son of Kuthalinga Pillai under Ex.A2 dated 06.11.1986 in
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S.A.(MD)Nos.806 and 807 of 2006
O.S.No.75 of 2000. The description of property sold under Ex.A2 is as
follows:
“North and West to Vellayutham Pillai's land,
East to Tenkasi-Madurai road,
South to Madasamy Thevar's land.”
6.Thereafter Vellayutham Pillai sold 28 cents of land in favour of the one
Selvaraj under Ex.A11 dated 27.04.1987 in O.S.No.75 of 2000. The
description of property sold under Ex.A11 is as follows:
“North and West to Vellayutham's land,
East to Tenkasi-Madurai road,
South to Madasamy Thevar's and Kuthalinga Pillai's land.”
7.From a reading of the above description, one can safely conclude that
the property sold in favour of Selvaraj is lying to the north of the property sold
in favour of the Arumuga Nainar. It is also abutting the Tenkasi-Madurai Road
which is on the eastern side. Selvaraj divided his 28 cents of land into two
parcels. He sold 14 cents land on the northern side in favour of one Irudaiya
Miyan Mary under sale deed dated 29.12.1989 marked as Ex.A13 in O.S.No.35
of 2004. The southern 14 cents of land was sold by Selvaraj in favour of the
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S.A.(MD)Nos.806 and 807 of 2006
first appellant/Ramaiah under Ex.A5 dated 29.12.1989 marked in O.S.No.35 of
2004. The description of property sold under sale deed dated 29.12.1989 in
favour of Ramaiah is as follows:
“North to Irudaiya Miyan Mary's land
South to Velayudham Pillai's Madamsamy Thevar's
and Kuthalinga Pillai's land
East to Tenkasi-Madurai road
West to Velayudham Pillai's land”
8.Kutralinga Pillai referred to in the aforesaid description is none other
than the father of Arumuga Nainar. From the above description, one can safely
come to the conclusion that the property purchased by the appellant/Ramaiah
was sandwiched between the property sold in favour of Irudaiya Miyan Mary
and the property sold to Arumuga Nainar.
9.Vellayutham Pillai did not obtain permission form the Town Planning
Authorities for forming the layout. He also executed Ex.B1 dated 20.04.1988
in favour of the Kuthukalvalasai Panchayat (Local body) for forming a road.
Based on the said gift deed, a road appears to have been formed. Arumuga
Nainar executed Ex.A1 dated 16.06.1999 in favour of Mary Josephine
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S.A.(MD)Nos.806 and 807 of 2006
conveying 5 ½ cents of land. The description of property set out in Ex.A1
dated 16.06.1999 is as follows:
“North to Subiah's compound wall
South to 20 feet Kuthukalvalasi Panchayat road,
East to Tenkasi-Madurai road,
West to Ramiah's house.”
10.The dispute between Ramaiah and Mary Josephine is as to where the
property purchased by her under sale deed dated 16.06.1999 is exactly located.
That led to institution of both the suits mentioned above.
11.The husband of Mary Josephine namely, Panner Selvam examined
himself as P.W.1 in O.S.No.75 of 2000. The Deputy Surveyor was examined as
P.W.2 and Mary Josephine's vendor/Arumuga Nainer was examined as P.W.3.
Exs.A1 to A14 were marked on side of the plaintiff. Ramaiah examined
himself as D.W.1 and marked Exs.B1 to B7 on his side. The survey records
were marked as Exs.C1 to C4. In the other suit, Ramaiah examined himself as
P.W.1 and marked Exs.A1 to A14. Mary Josephine's husband was examined as
D.W.1, the Head Surveyor was examined as D.W.2, Madasamy Thevar was
examined as D.W.3. Exs.B1 to B5 were marked. An advocate commissioner
was appointed and his reports and plans were marked as Exs.C1 to C5.
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S.A.(MD)Nos.806 and 807 of 2006
Through the witness, the revenue records were marked as witness documents 1
to 5. As already stated, the trial Court held in favour of Ramaiah while the first
appellate Court held in favour of Mary Josephine.
12.I must note at the very outset that the primary issue that has arisen in
these proceedings is that precise location of Kuthukalvalasi road that is said to
have been formed based on the gift deed dated 20.04.1988 executed by
Vellayutham Pillai. Vellayutham Pillai is like any greedy promoter. He could
have gifted the land that was retained by him. But on the very face of it, Ex.B1
gift deed dated 20.04.1988 appears to include the portions sold by him. The
learned counsel appearing for the respondent would draw my attention to
testimony of Madasamy Thevar, which indicates that the road runs through the
land that belongs to him. It has also been pointed out that when Vellayutham
Pillai purchased 2 acres and 47 cents of land from Madasamy Thevar under
Ex.A14 dated 26.08.1986, Madasamy Thevar retained plots on the southern
side. Therefore, the Kuthukalvalasai road logically should run on the extreme
southern side of what was purchased by Vellayutham Pillai under Ex.A14. But
one is not quite sure as to whether the road was in fact laid accordingly. The
stand of Ramaiah was that the road appears to cut cross the land purchased by
Arumuga Nainar. The bone of contention revolves only on this aspect.
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S.A.(MD)Nos.806 and 807 of 2006
Unfortunately, proper efforts were not taken by the Courts below to locate the
road. Therefore the matter calls for remand. In the meanwhile, the original
appellant/Ramaiah has passed away and his legal heirs have come on record.
I must clarify that the appellants will be entitled to a decree as prayed for even
after remand. This is for more than one reason. The appellants trace their title
to Selvaraj. Selvaraj had purchased the property from Vellayutham Pillai and
the property purchased by him lay to the north of what was sold in favour of
Arumuga Nainar. When Selvaraj divided his lands into two and sold the
southern portion, he showed Arumuga Nainar's property as a southern
boundary. Therefore, under no circumstances, the extent of land purchased by
Ramaiah can suffer any diminution. In fact, I would have straightaway passed
a decree in favour of the appellants here itself. I am not able to do so for the
simple reason that in the suit filed by Ramaiah in the year 2000, again the
southern boundary is shown as Arumuga Nainar's land. It could not be so.
Now the learned counsel for the appellants vehemently argued before me that
Kuthukalvalasi road separates their property and the property of Mary
Josephine. If that be so, the southern boundary was wrongly shown in the suit
schedule. I clarify once again that the legal heirs of Ramaiah will be entitled to
a decree as was originally prayed for O.S.No.35 of 2004. The only function
which the trial Court has to discharge is to locate the same.
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S.A.(MD)Nos.806 and 807 of 2006
13.As rightly noted by the trial Court, Mary Josephine purchased the
property from Arumuga Nainar only on 16.06.1999. By then, Kuthukalvalasai
road appears to have been formed. The description of the property set out in
the sale deed dated 16.06.1999 is quite misleading. While the eastern and
western boundaries are correct, the northern boundary is utterly wrong. By that
time, when Mary Josephine purchased 5 ½ cents from Arumuga Nainar,
Selvaraj has already sold away his 28 cents in favour of Irudaiya Miyan Mary
and Ramaiah. Ramaiah had purchased the southern portions. Therefore, it was
Ramaiah's boundary that should have shown as northern boundary for Mary
Josephine. Such a description was not reflected in the sale deed dated
16.06.1999. The first appellate Court has not taken note of any of these
aspects. It had not taken into account the description of property in the various
sale deeds on a chronological basis. The properties sold earlier should have
been given due weightage and allowance. Instead, the first appellate Court
went by the entries made in the revenue records and mutation, which were
made virtually on the eve of the institution of the suits. The first appellate
Court ought to have been borne in mind, the well settled principle that the
revenue entries cannot bind the civil Court. The civil Court ought to have
independently considered the issue in the light of the surrounding
circumstances. Since the first appellate Court did not adopt the correct
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S.A.(MD)Nos.806 and 807 of 2006
approach, I have no hesitation to answer the second substantial question of law
in favour of the appellants. Accordingly, the impugned judgments and decrees
are set aside and the matters are remanded to the file of the trial Court. The
trial Court will appoint a fresh advocate commissioner. The advocate
commissioner will first identify and locate the Kuthukalvalasai road on ground
as it is presently running and thereafter in the light of the various sale deeds
mentioned above, identify the portions purchased by the respective parties. The
stand of Maria Josephine is that she had purchased the land to the north of the
Kuthukalvalasai Road. The said land cannot obviously overlap with what was
purchased by Ramaiah. I make it clear that the suit filed by Ramaiah will have
to be necessarily decreed in favour of his legal representatives. The matter is
remanded only for the purpose of exactly identifying the lie of the land
purchased by the Ramaiah and the land purchased by Mary Josephine. Since
the road was formed in late 1980's and Mary Josephine purchased the land
under Ex.A1 only in the year 1999, if the road runs across Mary Josephine's
land, she has to necessarily suffer the consequential diminution. The parties
will appear before the court below on 07.02.2022. As and when, the advocate
commissioner undertakes the task of physical inspection, the learned counsel
for the respondent herein will be at liberty to file his memo of instructions.
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S.A.(MD)Nos.806 and 807 of 2006
14.These second appeals are allowed accordingly. No costs.
06.09.2021
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.
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S.A.(MD)Nos.806 and 807 of 2006
To:
1.The Principal Subordinate Court,
Tenkasi.
2.The Additional Subordinate Court,
Tenkasi.
3.The District Munsif Court,
Sengottai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)Nos.806 and 807 of 2006
G.R.SWAMINATHAN, J.
ias
S.A.(MD)Nos.806 and 807 of 2006
06.09.2021
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