Madras High Court
K.Meenathal vs M.Chinnasamy on 8 September, 2021
1 S.A.(MD)Nos.910 & 911 OF 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.910 & 911 of 2007 and
M.P.(MD)No.1 of 2007
S.A.(MD)No.910 of 2007
1. K.Meenathal
2. Kandasamy ... Appellants/Appellants/
Defendants
Vs.
M.Chinnasamy ... Respondent/Respondent/
Plaintiff
Prayer: Second appeal filed under Section 100 of
C.P.C., against the judgment and decree passed in A.S.No.29
of 2006 on the file of the learned Subordinate Judge, Palani,
dated 12.01.2007 confirming the judgment and decree passed
in O.S.No.542 of 2001 on the file of the learned District
Munsif, Palani, dated 31.01.2006.
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1/13
2 S.A.(MD)Nos.910 & 911 OF 2007
S.A.(MD)No.911 of 2007
K.Meenathal ... Appellant/Appellant/
Plaintiff
Vs.
M.Chinnasamy ... Respondent/Respondent/
Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., against the judgment and decree passed in A.S.No.34
of 2006 on the file of the learned Subordinate Judge, Palani,
dated 12.01.2007 confirming the judgment and decree passed
in O.S.No.237 of 2000 on the file of the learned District
Munsif, Palani, dated 31.01.2006.
(in both S.As.)
For Appellants : Mr.M.P.Senthil
For Respondent : Mr.Meenakshi Sundaram,
Senior Counsel,
for Mr.D.Venkatesh.
***
https://www.mhc.tn.gov.in/judis
COMMON JUDGMENT
Tmt.Meenathal, appellant in these second appeals
filed O.S.No.237 of 2000 on the file of the District Munsif,
Palani, seeking the relief of declaration and consequential
permanent injunction against the defendant Chinnasamy in
respect of the suit property. Thiru.Chinnasamy subsequently
filed O.S.No.542 of 2001 against Meenathal and her husband
seeking the relief of declaration, mandatory injunction,
permanent injunction and recovery of possession in respect of
the very same property.
2. The suit property measures 297 sq.ft(east-west
27 feet x north-south 11 feet) and is comprised in T.S.
No.1009/1A1A1A1A2 in Ward No.3, Andavar Poonga in Palani.
The case of the appellants is that the suit property as well as
the adjacent lands originally belonged to one Alliammal @
Rajalakshmi. She conveyed 1012 ½ sq.ft. of land in favour of
one Muthammal vide Ex.A.2 dated 08.06.1983. Muthammal
passed away and her legal heirs sold what was purchased
under Ex.A.2 vide Ex.A.4 dated 25.06.1999 in favour of
Meenathal. The suit property lies in the middle of the portions
conveyed under Ex.A.2 as well as Ex.A.4.
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3. The case of Meenathal is that the suit propertiy is
actually a lane and that it is appurtenant to what was
purchased by her under Ex.A.4 and that it absolutely belongs
to her for her exclusive use and enjoyment and that it cannot
be alienated. On the other hand, the stand of Chinnasamy is
that the suit property is not a lane, but is an independent
piece of land by itself and that the title holder, namely,
Alliammal @ Rajalakshmi sold the same in his favour vide sale
deed dated 27.01.2000(Ex.B.3). Since the suit property was
purchased by Chinnasamy under Ex.B.3 and since Meenathal
asserted claim over the same, the institution of these suits
became necessary. While Chinnasamy filed written statement
controverting the claim of Meenathal, Meenathal and
Kandasamy filed written statement controverting the claim of
Chinnasamy. Since both the suits pertained to one and the
same property, they were tried together. Kandasamy was
examined as P.W.1 on behalf of Meenathal and Ex.A.1 to Ex.A.
6 were marked. Chinnasamy examined himself as D.W.1 and
Ex.B.1 to Ex.B.5 were marked. An Advocate Commissioner was
appointed and his report and plan were marked as Court Ex.C.
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1 and Ex.C.2. The learned trial Judge after a consideration of
the evidence on record, vide judgment and decree dated
31.02.2006 decreed the suit filed by Chinnasamy and
dismissed the suit filed by Meenathal. Aggrieved by the same,
A.S.No.29 of 2006 was filed by Meenathal and her husband
Kandasamy. Meenathal also independently filed A.S.No.34 of
2006. Both the appeals were heard together and by judgment
and decree dated 12.01.2007, the first appellate Court
dismissed the same. Challenging the dismissal of the first
appeals, these second appeals came to be filed.
4. The second appeals were admitted on the following
substantial questions of law:-
“1. Whether the Courts below are right
in relying upon Ex.B.3 sale deed in respect of the
suit property, which came into existence over a
period of 17 years from the date of sale under
Ex.A.2?
2. Whether the Courts below are right in
not considering the document that vendor of the
respondent under Ex.B.3 has no right to alienate
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the suit property after the sale deed in favour of
the appellant's vendor under Ex.A.2? ”
5. Heard the learned counsel appearing for the
appellants and the learned Senior counsel appearing for the
respondent.
6. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
questions of law in favour of the appellants. He wanted the
suit filed by Meenathal to be decreed and the suit filed by
Chinnasamy to be dismissed. He took me through the
description of the property set out in Ex.A.2 which is the
parent document filed by the appellants. In Ex.A.2, Alliammal
@ Rajalakshmi while conveying the properties no doubt had
mentioned the suit property as one of the boundaries. But
then, it has been described as a lane. From this, one can easily
come to the conclusion that the vendor had virtually passed on
its usage for the exclusive benefit of the purchaser. The
learned counsel would highlight the fact that this is amplified
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by the execution of Ex.B.4 license deed dated 20.11.1986
executed by Alliammal @ Rajalakshmi in favour of
Muthammal. He called upon this Court to take note of the
conduct of the respondent herein. The respondent herein had
earlier purchased the very same property from a person who
had no title. In fact Meenathal had filed O.S.No.487 of 1999
on the file of the District Munsif, Palani, seeking the relief of
injunction against another person and the same was also duly
decreed as evident by Ex.A.5 dated 30.07.2004. He would
harp on the fact that the constructions put up by the
appellants are very old and accordingly an Advocate
Commissioner submitted his report and plan and that there
are windows and doors opening towards the suit property. The
learned counsel invoked Section 8 of the Transfer of Property
Act, 1882. According to him, when Alliammal @ Rajalakshmi
executed Ex.A.2 sale deed dated 08.06.1983 in favour of
Muthammal, she also transferred all the interests in the suit
property.
7. Per contra the learned Senior counsel appearing
for the respondent submitted that the Courts below have
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concurrently found against the appellants and that no
substantial question of law arises for consideration. He called
for dismissal of the second appeal.
8. I carefully considered the rival contentions and
went through the evidence on record.
9. The invocation of Section 8 of the Transfer of
Property Act appears to be clearly misplaced. Section 8 of the
Transfer of Property Act, 1882 reads as follows:-
“8. Operation of transfer.—Unless a
different intention is expressed or necessarily
implied, a transfer of property passes forthwith
to the transferee all the interest which the
transferor is then capable of passing in the
property, and in the legal incidents thereof.
Such incidents include, where the
property is land, the easements annexed thereto,
the rents and profits thereof accruing after the
transfer, and all things attached to the earth;
and, where the property is machinery attached
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to the earth, the moveable parts thereof;
and, where the property is a house, the
easements annexed thereto, the rent thereof
accruing after the transfer, and the locks, keys,
bars, doors, windows and all other things
provided for permanent use therewith;
and, where the property is a debt or other
actionable claim, the securities therefor (except
where they are also for other debts or claims not
transferred to the transferee), but not arrears of
interest accrued before the transfer;
and, where the property is money or other
property yielding income, the interest or income
thereof accruing after the transfer takes effect.”
10. As per the said provision, when a property is
transferred, all the legal incidents attached to the property
will also be passed in favour of the purchaser. The moot
question is whether the suit property can be considered as an
indefeasible part of what was sold under Ex.A.2/Ex.A.4. The
case of the appellants is completely undermined by the license
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deed dated 20.11.1986(Ex.B.4) executed in favour of
Meenathal's vendor, namely, Muthammal by Alliammal @
Rajalakshmi. More than anything else, the learned Senior
counsel appearing for the respondent would draw my
attention to Ex.B.5 dated 17.09.1999. It is a rental agreement
entered into between the appellant Meenathal and the original
owner Alliammal @ Rajalakshmi. Under Ex.B.5, Meenathal
had been inducted as a lessee in respect of the suit property.
If according to Meenathal, the suit property is an indefeasible
part of what was purchased by her under Ex.A.4 dated
25.06.1999, there was no need for her to enter into a lease
agreement in respect of the suit property. The execution of the
license deed in favour of Muthammal and the execution of the
rental agreement in favour of the appellant Meenathal would
clearly show that the suit property is an independent piece of
land by itself.
11. A reading of Ex.A.2 as well as Ex.A.4 would
clearly show that the suit item was not purchased by the
appellant Meenathal. What was purchased was only the
adjacent land lying to the north of the suit property. Under
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Ex.A.4, the appellant Meenathal did not get any title over the
suit property. It was Chinnasamy who had purchased it from
the original owner Alliammal @ Rajalakshmi under Ex.B.3
dated 27.01.2000. Therefore, the Courts below rightly found
that Chinnasamy is entitled to be declared as owner of the suit
property. Once the suit property is found to belonged to
Chinnasamy, the consequences will have to necessarily follow.
Meenathal can no longer put up any encroachment. The Court
below has correctly dismissed the suit filed by Meenathal and
granted the reliefs sought for by Chinnasamy. No substantial
question of law arises for consideration in this appeal.
12. It is seen from the Advocate Commissioner's
report and plan that there are two commercial shops being
run on the two portions purchased under Ex.A.4 are having
doors opening on the western side. The shops run by the
appellants are situated on the western side by what is known
as “Poonga Theru”. Of course the appellants cannot be
restrained from having windows on the structures put by her
on her land. Chinnasamy of course has to use the suit property
in conformity with the local body regulations. The substantial
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questions of law are answered against the appellants. The
impugned judgment and decree is confirmed.
13. These second appeals are dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
08.09.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. 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.
2. Web copy of this order shall be
uploaded on 24.01.2022.
To:
1. The Subordinate Judge,
Palani.
2. The District Munsif,
Palani.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Note : Web copy of this order
shall be uploaded on
24.01.2022.
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)Nos.910 & 911 of 2007
08.09.2021
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
