Madras High Court
Venkateswaran vs Subbammal on 22 September, 2021
1 S.A.NO.142 OF 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.142 of 2005 &
M.P.(MD)No.1 of 2009
1. Venkateswaran
2. Bhuvaneshwaran
(Appellants are declared as major and the guardianship
was discharged vide Order dated 03.07.2018 made in
C.M.P.(MD)Nos.5012 and 5013 of 2013)
... Appellants / Appellants /
Plaintiffs
Vs.
1. Subbammal
2. P.Gopal
3. Virunagammal
(R-1 & R-2 remained ex-parte in the Courts below. Hence,
they may be given up in the second appeal)
... Respondents / Respondents /
Defendants
Prayer: Second appeal filed under Section 100 of
C.P.C., against the judgment and decree in A.S.No.95 of 2002
on the file of the Principal Subordinate Judge, Dindigul, dated
17.09.2004 confirming the judgment and decree passed in
O.S.No.396 of 1999 dated 25.10.2000 on the file of the I
Additional District Munsif, Dindigul.
For Appellant : Mr.S.Natarajan
For R-3 : Mr.D.Senthil
***
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2 S.A.NO.142 OF 2005
JUDGMENT
The plaintiffs in O.S.No.396 of 1999 on the file of the
I Additional District Munsif, Dindigul, are the appellants in
this second appeal.
2. The suit was filed seeking the relief of declaration
and permanent injunction restraining the defendants from
interfering with the plaintiffs' possession and enjoyment of the
suit property. The suit property was described as follows:-
“Survey No.769/2 measuring 27 cents in
Kasavanampatty Village in Dindigul Taluk. “
3. The case of the plaintiffs was that the suit property
originally belonged to one Thirumalaisamy Gounder. He sold
the suit property in favour of one Azhagar Gounder and Minor
Palanivel vide sale deed dated 01.04.1970. A partition took
place between Azhagar Gounder and Minor Palanivel and in
the said partition, the suit property was allotted in favour of
Azhagar Gounder. Azhagar Gounder in turn sold the suit
property along with other items in favour of the plaintiffs vide
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3 S.A.NO.142 OF 2005
sale deed dated 05.10.1998(Ex.A.4). Thereafter, the plaintiffs
applied to the revenue authorities and got the revenue records
also appropriately mutated. Since the defendants staked their
claim and sought to interfere with the possession and
enjoyment of the suit property, the said suit had to be filed.
4. The defendants filed a detailed counter statement
controverting the plaint averments. Based on the divergent
pleadings, the trial Court framed the necessary issues. On
behalf of the minor plaintiffs, their father and natural
guardian Thangaraj examined himself as P.W.1. The vendor of
the plaintiffs was examined as P.W.2. Ex.A.1 to Ex.A.16 were
marked. Defendants 1 and 2 remained ex-parte. The
contesting defendant Virunagammal examined herself as
D.W.1. Ex.B.1 and Ex.B.2 were marked. After a consideration
of the evidence on record, the trial Court by judgment and
decree dated 25.10.2000 dismissed the suit. Aggrieved by the
same, the plaintiffs filed A.S.No.95 of 2002 on the file of the
Principal Sub Court, Dindigul. By judgment and decree dated
17.09.2004, the first appellate Court confirmed the decision of
the trial Court and dismissed the appeal. Aggrieved by the
same, this second appeal came to be filed.
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4 S.A.NO.142 OF 2005
5. This second appeal was admitted on the following
substantial questions of law:-
“ 1. From the facts and circumstances of
the case, whether the third defendant is not
estopped under Section 115 of the Indian
Evidence Act from disputing the validity of the
plaintiffs' title under Ex.A.4, when it is the
husband of the third defendant who previously
entered into an agreement with the same vendor
for the very same property?
2. When the identity of the suit property
which reference to Survey No.769/2 has been
established by Ex.A.4 and Ex.A.8, is there any
justification for the Courts below to deny the title
of the plaintiffs for non-mentioning of the Survey
No. alone in Ex.B.1? “
6. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds. She pointed out that in respect of the suit property,
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5 S.A.NO.142 OF 2005
the husband of the third defendant entered into a sale
agreement with the plaintiffs' vendor under Ex.A.8 and the
suit property was purchased by the plaintiffs from P.W.2
under Ex.A.4 dated 05.10.1998. A comparison of the schedule
of the property set out in Ex.A.8 and Ex.A.4 would show that
they are one and the same. She would also point out that the
suit property originally bore the Survey No.769/3 and during
UDR, it became 769/2. The revenue documents marked by the
plaintiffs would convincingly show that the vendor had very
much title to convey the suit property in favour of the
plaintiffs. She also submitted that during the pendency of the
suit proceedings, the contesting defendant committed
encroachment and therefore the plaintiffs had to file a suit for
recovery of possession in O.S.No.669 of 2000 on the file of the
Principal District Munsif, Dindigul.
7. The suit property covered in the present second
appeal was a part of the property for which the relief was
sought. The trial Court granted the relief only for the other
portion, but left the present suit property open on the ground
that this Court is seized of the subject matter. The suit was
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6 S.A.NO.142 OF 2005
decreed up to that portion. In the said suit, the plaintiffs
herein filed I.A.No.888 of 2004 and the Advocate
Commissioner was appointed and after inspecting the suit
property, he filed a report and plan. The appellants want this
Court to receive the same by way of additional evidence. The
learned counsel submitted that the substantial questions of
law may be answered in favour of the appellants and the
judgment and decree passed by the Courts below may be set
aside and the suit decreed as prayed for.
8. Per contra, the learned counsel appearing for the
respondents submitted that the impugned judgment and
decree are well founded and well reasoned and that they do
not call for any interference.
9. I carefully considered the rival contentions and
went through the evidence on record.
10. There is no dispute that the plaintiffs trace their
title from P.W.2 Azhagar. The said Azhagar in turn traced his
title from one Thirumalaisamy. Thirumalaisamy had sold
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7 S.A.NO.142 OF 2005
certain properties in favour of Azhagar under Ex.B.1 dated
01.04.1970. The description of the property set out in Ex.B.1
is as under:-
“ ... fpua nrhj;J tpguk;
jpz;Lf;fy; khtl;lk; Mj;Jh; rg;b
frtzk;gl;b fpuhkg;Gyj;jpy; vq;fSf;F
nrhe;jkhdJk;> ehq;fs; mDgtpj;Jf; nfhz;L
tUtJkhd f.rh;Nt 769/2A eph; Vf;fh; 4.40> f.rh;Nt
769/1> eph; Vf;fh; 0.37 Mf Vf;fh; 4.77f;F GJrh;Nt
769/1 eph; Vf;fh; 4.77k; f.rh;Nt 769/3A eph; Vf;fh;
2.00y; tlGwk; nrz;L 27 GJrh;Nt 769/3 eph; Vf;fh;
2.00y; tlGwk; nrz;L 0.27k>; Mf Vf;fh;
5.04k;> ,jw;F ehd;Fkhy; Rg;gk;khs; tifawh
GQ;irf;Fk; Nkw;F> rilad; Xilf;Fk; njw;F>
nuq;fa fTz;lh; GQ;irf;Fk; Rg;iga fTz;lh;
GQ;irf;Fk; fpof;F> rpd;dk;khs; Kj;ja
fTlh; ,th;fs; GQ;irf;Fk; tlf;F> ,JTk; f.rh;Nt
769/4 eph; Vf;fh; 1.25f;F GJrh;Nt 769/7 eph; Vf;fh;
1.25k;> ,jw;F ehd;Fkhy; Rg;gk;khs; GQ;irf;Fk;
njw;F> godpfTz;lh; GQ;irf;Fk; tlf;F> Nkw;fz;l
epyq;fspy; cs;s khtil kutilfSk; Nrh;e;J
nrhj;jpy; tpy;yq;fk; vJTk; ,y;iy vd;W fpuak;. ...
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8 S.A.NO.142 OF 2005
1) 769/1> eph; 4.77 GQ;ir> &.5>676 2) 769/3 eph; 2.00y;
tlGwk; nrz;L 0.27k; GQ;ir &.324 3) 769/7 eph;
1.25k; GQ;ir &.1>500. ...”
When Azhagar sold the property in favour of the plaintiffs
under Ex.A.4 dated 05.10.1998, it contains the following
description:-
“... fpua nrhj;J tpguk;
1. jpz;Lf;fy; khtl;lk;> fd;dpthb
rg;btp\d; frtzk;gl;b fpuhk Gyj;jpy; jw;fhy
rh;Nt 769/2 eph; GQ;ir n`f;Nlh; 0.11.0f;F nrz;L
27f;F khy; ,jd; ,uz;lhk; ,yf;f nrhj;Jf;Fk;>
tPuehfk;khs; g.Rg;gk;khs; GQ;irf;Fk; njw;F>
njh.godpfTz;lh; GQ;irf;Fk; Nkw;F> njd;tly;
Xilf;Fk; fpof;F> uh.Nfhtpe;jd;> fzgjp fTlh;>
jpUkiyrhkp> tPuehfk;khs; g.Rg;gk;khs; ,th;fs;
GQ;irf;Fk; tlf;F.
2. Nkw;gb fpuhk Gyj;jpy; Nkw;gb rh;Nt
769/1 eph; GQ;ir n`f;Nlh; 1.26.5f;F Vf;fh; 3.13f;F
khy;> tPuehfk;khs; g.Rg;gk;khs; GQ;irf;F Nkw;F>
Kjy; ,yf;f GQ;irf;F tlf;F> njd;tly;
Xilf;Fk; ng.Kj;ija fTlh; ,th;fs; GQ;irf;Fk;
fpof;F> Nfh.tbNty; nu.ngj;jdrhkp nt.Nfhghy;
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9 S.A.NO.142 OF 2005
nt.ntq;fl;uhkd; ,th;fs; GQ;irf;F
njw;F> ,jw;Fl;gl;l Nkw;gb Vf;fh; 3.11y; cs;s
GQ;ir epyKk; Nkw;gb epyj;jpYs;s Foha; fpzW
xd;Wk; mjd; rfykh%y; ghj;jpaKw;glTk; Nrh;e;J
cl;gl;lJ. ... ”
11. The learned counsel appearing for the contesting
respondent would point out that the suit property which is
comprised in Survey No.769/2 is not found in Ex.B.1 dated
01.04.1970 and that the suit property was never purchased by
P.W.2 from Thirumalaisamy and without having any title, the
suit property was conveyed by him to the plaintiffs. On the
other hand, the learned counsel appearing for the appellants
would contend that admittedly Thirumalaisamy Gounder sold
27 cents of land in new Survey No.769/3 in favour of Azhagar
and Minor Palanivel and that this Survey number later became
769/2. If that be so, the plaintiffs would definitely be entitled
to declaration as sought for. But there is one difficulty that is
coming in my way. The evidence adduced by the plaintiffs is
not sufficient to co-relate Survey No.769/3 covered under
Ex.B.1 with the present suit property. Merely because, the
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10 S.A.NO.142 OF 2005
contesting defendant's husband entered into an agreement
with P.W.2 for purchase of the suit property that would not in
any way operate as an estoppel under Section 115 of the
Indian Evidence Act. The doctrine of estoppel can be pressed
into service only against a person who held out a
representation to the person invoking the doctrine based on
which the person assured altered his position. In the case on
hand, neither the contesting defendant nor the her husband
held out any assurance to the plaintiffs herein. Therefore, by
no stretch of imagination can they invoke the doctrine of
estoppel under Section 115 of the Indian Evidence Act.
Therefore, I have no hesitation to answer the first substantial
question of law against the appellants.
12. As regards the second substantial question of law,
I must hold that the plaintiffs have failed to establish
co-relation between Survey No.769/3 referred to in Ex.B.1 and
the suit property which is comprised in Survey No.769/2. But
on this ground, the plaintiffs cannot be denied the relief
sought for. The plaintiffs would definitely be entitled to
declaration in respect of the property
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11 S.A.NO.142 OF 2005
which is covered under Ex.B.1. Therefore, the judgment and
decree passed by the Courts below are modified in the
following terms:-
It is declared that the plaintiffs are the
absolute owners of the property covered under Survey
No.769/3 measuring an extent of 27 cents as referred
to in Ex.B.1 dated 01.04.1970 executed by
Thirumalaisamy Gounder in favour of P.W.2. The
defendants cannot interfere with the plaintiffs'
possession and enjoyment in respect of the said
property. If any interference with the said property
occurs, the plaintiffs can initiate proceedings under
Order 21 Rule 34 of C.P.C. for punishing for
disobedience of the decree passed by this Court. The
plaintiffs have then to establish co-relation. Both the
parties will be at liberty to adduce evidence in such
proceedings. I make it clear that the jurisdictional
revenue authorities will have to be necessarily
examined. In other words, it is for the plaintiffs to
establish that the suit property is very much covered
under Ex.B.1 dated 01.04.1970.
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12 S.A.NO.142 OF 2005
13. This second appeal is accordingly disposed of. No
costs. Consequently, connected miscellaneous petition is
closed.
22.09.2021
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 31.01.2022.
To:
1. The Principal Subordinate Judge,
Dindigul.
2. The I Additional District Munsif,
Dindigul.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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13 S.A.NO.142 OF 2005
G.R.SWAMINATHAN,J.
PMU
S.A.No.142 of 2005
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14 S.A.NO.142 OF 2005
22.09.2021
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