Madras High Court
Perumal Naicker (Died) vs Vijayendren on 22 September, 2021
S.A.(MD)No.646 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.646 of 2009
and
M.P.(MD)No.1 of 2009
and
C.R.P.(NPD)(MD)No.1167 of 2009
S.A.(MD)No.646 of 2009:
1.Perumal Naicker (Died)
2.Saroja
3.Palraj
4.Krishnamoorthy
5.Santhi
6.Maharani
7.Anusuyadevi
8.Guruvammal
9.Sathyamoorthy ... Appellants
(Appellants 2 to 9 are brought on record as
LRs of the deceased 1st appellant vide
order dated 25.08.2021 made in
C.M.P.(MD)Nos.6869 to 6871 of 2021 in
S.A.(MD)No.646 of 2009 by GRSJ)
Vs.
Vijayendren ... Respondent
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S.A.(MD)No.646 of 2009
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 15.04.2009 passed in A.S.No.53 of 2008
on the file of the Sub Court, Aruppukottai, confirming the judgment and decree
passed in O.S.No.163 of 2003 dated 01.08.2008 on the file of the District
Munsif Court, Aruppukottai.
For Appellants : Mr.D.Malaichamy
For Respondent : Mr.S.Natarajan
C.R.P.(NPD)(MD)No.1167 of 2009:-
1.Perumal Naicker (Died)
2.Saroja
3.Palraj
4.Krishnamoorthy
5.Santhi
6.Maharani
7.Anusuyadevi
8.Guruvammal
9.Sathyamoorthy ... Petitioners
(Petitioners 2 to 9 are suo motu impleaded
as LRs of the deceased 1st Petitioner vide
order dated 25.08.2021 made in C.R.P.
(MD)No.1167 of 2009 by GRSJ)
Vs.
Vijayendren ... Respondent
Prayer : Civil Revision Petition filed under Section 115 of Civil Procedure
Code, to set aside the fair and decreetal order dated 15.04.2009 passed in
I.A.No.134 of 2008 in A.S.No.53 of 2008, on the file of the Sub Court,
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S.A.(MD)No.646 of 2009
Aruppukottai arising out of O.S.No.163 of 2003 on the file of the District
Munsif Court, Aruppukottai.
For Petitioner : Mr.D.Malaichamy
For Respondent : Mr.S.Natarajan
JUDGEMENT
The defendant in O.S.No.163 of 2003 on the file of the District Munsif
Court, Aruppukottai is the appellant in this second appeal. The suit was for
declaration that the plaintiff is the owner of the suit properties and for
consequential relief of permanent injunction restraining the defendant from in
any way interfering with the plaintiff's possession and enjoyment of the suit
properties. The suit schedule properties are five in number. They are
comprised in S.Nos.72/7, 76/1A, 92/4, 95/2 and 76/1E in Nochikulam village,
covered under Patta No.73. The case of the plaintiff is that the suit properties
originally belonged to his paternal grandfather namely, Gurusamy Naicker.
Gurusamy Naicker had three sons namely, Periya Perumal Naicker, Nadu
Perumal Naicker and Chinna Perumal Naicker. The plaintiff is the son of the
second son namely, Nadu Perumal Naicker. The elder son namely, Periya
Perumal Naicker was a bachelor and he died issueless. The third son of
Gurusamy Naicker namely, Chinna Perumal Naicker had executed a release
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S.A.(MD)No.646 of 2009
deed dated 30.07.2002 (Ex.A3) in favour of the plaintiff. Nadu Perumal
Naicker passed away prior to the filing of the suit. Thus, the suit properties
came to vest in the plaintiff. Since the defendant was staking a rival claim and
also interfering with his possession and enjoyment, the plaintiff had to file the
said suit.
2.The suit claim was resisted by the defendant. He filed written
statement controverting the plaint averments. The case of the defendant was
that the suit properties originally belonged to his father-in-law namely, Muthiah
Naicker, S/o.Poochi Naicker. The said Muthiah Naicker had a brother by name
Chinnappan @ Poochi Naicker. The said Chinnappan @ Poochi Naicker had
two daughters namely, Saroja and Guruvammal. Muthiah Naicker is said to
have taken Saroja as his adoptive daughter. The defendant/Perumal Naicker
married both the daughters namely, Saroja and Guruvammal. The defendant
would claim title over the suit properties through his in-laws. He would state
that his father-in-law executed a Will in favour of Saroja and that is how, the
properties came to vest in him.
3.Based on the divergent pleadings, the trial Court framed the necessary
issues. The plaintiff/Vijayendren examined himself as P.W.1 and two other
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S.A.(MD)No.646 of 2009
witnesses were also examined on his side. Exs.A1 to A6 were marked. The
defendant examined himself as D.W.1 and his wife/Saroja was examined as
D.W.2 and Exs.B1 to B22 were marked. Six documents were produced by
third parties, they were marked as Exs.X1 to X6.
4.After a consideration of the evidence on record, by judgment and
decree dated 01.08.2008, the trial Court decreed the suit as prayed for.
Aggrieved by the same, the defendant filed A.S.No.53 of 2008 before the Sub
Court, Aruppukottai. The first appellate Court by the impugned judgment and
decree dated 15.04.2009 dismissed the appeal and confirmed the decision of
the trial Court. Challenging the same, this second appeal came to be filed.
5.The second appeal was admitted on the following substantial
questions of law:-
“(i)Whether the Courts below are correct in
upholding the title of the respondent over the suit properties
by relying on Exs.X1 and X2 and the oral evidence of DW2
as to boundaries since the same are against the well settled
principles of law that the plaintiff should prove his case on
his own and he cannot pick holes in the defense?
(ii)Whether the Courts below are right in holding that
Ex.A1 would act as estoppel since,
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S.A.(MD)No.646 of 2009
(a) the same is not pleaded in the plaint;
(b) the same does not contain the
description of the suit properties;
(c) the author deposed that it was
executed by him under threat;
(d) the same does not satisfy the
requirements of Section 115 of the Law of
Evidence; and
(e) the mere admission that some other
person is the owner of a certain property, when
in fact that other persons has no title at all, he
will not denude himself of ownership of the
property which really vests in him;
(iii)Whether the Courts below are right in decreeing
the suit on the strength of Ex.X1 and X2 without deciding
the fact that Ex.X1 refers to which of the suit properties and
Ex.X2 refers to which of the suit properties?”
6.In the appeal suit, the defendant filed a petition under Order 41 Rule 27
of Civil Procedure Code for reception of additional evidence and the same was
dismissed by the first appellate Court. Questioning the same, the defendant
filed C.R.P.(NPD)(MD)No.1167 of 2009. Since the second appeal as well as
the civil revision petition are interlinked, they are heard and disposed of
together.
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S.A.(MD)No.646 of 2009
7.During the pendency of these proceedings, the defendant passed away
and his legal representatives have been brought on record both in the second
appeal as well as in the civil revision petition.
8.The learned counsel appearing for the legal representatives of the
original appellant reiterated all the contentions set out in the memorandum of
grounds and he called upon this Court to answer the substantial questions of
law in favour of the appellants and set aside the impugned judgments and
decrees and dismiss the suit. The case of the plaintiff is that the suit properties
were purchased by his paternal grandfather namely, Gurusamy Naicker under
Exs.X1 and X2. A mere perusal of the same, according to him, would show
that no survey numbers are mentioned and there is nothing to show that the suit
properties are covered thereunder. On the other hand, the title documents
marked by the defendant would show that the suit properties were purchased by
his father-in-law namely, Muthiah Naicker. He would further state that when
the plaintiff had filed the instant suit for declaration and permanent injunction,
the burden lay entirely on him but the Courts below have chosen to decree the
suit by picking holes in the defense. He would also state that if only the
additional evidence had been received, it would have shed considerable light
on the true controversy. The primary function of any Court is to render justice.
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S.A.(MD)No.646 of 2009
But in the case on hand, the first appellate had chosen to go by technical
considerations for declining to receive additional evidence. His further
contention is that the plaintiff had not adduced any evidence to show that he is
possession of the suit properties.
9.Per contra, the learned counsel for the respondent submitted that the
impugned judgments and decrees are well reasoned and that they do not call for
any interference.
10.I carefully considered the rival contentions and went through the
evidence on record. The specific stand of the plaintiff is that the suit properties
were purchased by his paternal grandfather under third party exhibits namely,
Exs.X1 and X2. It is true that in those two documents, which are dated
22.05.1950 and 10.10.1946, the survey numbers have not been given but the
four boundaries have been clearly spelt out. D.W.2/Saroja through whom, the
defendant is staking his claim categorically admitted the correctness of the four
boundaries set out therein. Thus on a cumulative appreciation of these two
documents in the light of the categorical admission made by D.W.2, the Courts
below have concurrently rendered a finding that the suit properties are very
much covered under two those documents namely, Exs.X1 and X2. The
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S.A.(MD)No.646 of 2009
said concurrent finding is not only not perverse but well founded. I do not find
any reason to interfere with the said finding. On the other hand, both the
documents projected by the defendant do not have any relation whatsoever
with the suit properties. I went through the contents of Exs.B3 as well as B4.
Ex.B3 pertains to S.No.92/3 while Ex.B4 pertains to S.No.76/7. I have already
extracted the suit schedule items. It can be seen that none of the survey
numbers mentioned in the suit schedule have any relation to the properties
covered under Exs.B3 and B4. That is why, the Courts below came to the
conclusion that both the documents projected by the defendant do not advance
his case. The conclusion arrived by the Courts below are well founded and
they do not call any interference.
11.In this second appeal, the appellants tried to introduce a new case. It
was contended that a part of the suit properties covered under Ex.X2 was sold
by Gurusamy Naicker to Muthiah Naicker. But a mere look at the pleading
would show that this was never the case of the defendant. The defendant no
where pleaded that the plaintiff's grandfather had sold a part of the suit
properties in favour of the defendant's father-in-law. In fact, I would have
overlooked the omission in the pleading, if the document concerned had
already been brought on record. When the defendant had failed to mark any
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S.A.(MD)No.646 of 2009
such document before the trial Court, the first appellate Court was justified in
coming to the conclusion that an additional evidence that is not consistent with
the pleadings cannot be allowed to be introduced in evidence at the appellate
stage. In the case on hand, it is not a case of mere inconsistency. On the other
hand, the defendant is setting up an entirely new case. That is why, I sustain
the objection raised by the learned counsel appearing for the respondent herein.
Looked at from any angle, no case for interference has been made out. The
substantial questions of law are answered against the appellants.
12.In the result, the second appeal and the civil revision petition are
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
22.09.2021
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)No.646 of 2009
To:
1.The Sub Court,
Aruppukkottai.
2.The District Munsif Court,
Aruppukkottai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.646 of 2009
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.646 of 2009
and
C.R.P.(NPD)(MD)No.1167 of 2009
22.09.2021
https://www.mhc.tn.gov.in/judis/
