Madras High Court
Mariappan vs M.Selvam on 30 September, 2021
S.A.(MD)No.930 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.930 of 2008
Mariappan ... Appellant
Vs.
M.Selvam ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 05.10.2007 made in A.S.No.30 of 2003
on the file of the Sub Court, Periyakulam, reversing the judgment and decree
dated 31.01.2003 made in O.S.No.38 of 2002 on the file of the District Munsif
Court, Andipatti.
For Appellant : Mr.R.Surianarayanan
For Respondent : No appearance
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S.A.(MD)No.930 of 2008
JUDGEMENT
The plaintiff in O.S.No.38 of 2002 on the file of the District Munsif
Court, Andipatti is the appellant in this second appeal. The plaintiff filed the
said suit seeking permanent injunction for restraining the defendants from
interfering with his possession and enjoyment of the suit property. The
defendants filed written statement controverting the plaint averments. Based
on the divergent pleadings, the trial Court framed the necessary issues.
2.The plaintiff examined himself as P.W.1 and three other witnesses were
examined on his side. Exs.A1 to A5 were marked. The first
defendant/respondent examined himself as D.W.1 and one Manikandan was
examined as D.W.2 and Exs.B1 to B4 were marked.
3.After considering the evidence on either side, the trial Court by
judgment and decree dated 31.01.2003 decreed the suit. Aggrieved by the
same, the first defendant filed A.S.No.30 of 2003 before the Sub Court,
Periyakulam. By the impugned judgment and decree dated 05.10.2007, the
appeal was allowed and the decision of the trail Court was set aside and the suit
came to be dismissed. Challenging the same, this second appeal has been filed.
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S.A.(MD)No.930 of 2008
4.The second appeal was admitted on the following substantial question
of law:-
“Whether the first appellate Court is right in
allowing the appeal and dismissing the suit by observing
that possession cannot be determined only on the basis of
Exs.A3 and A4, which are the best evidence to show
possession and enjoyment of the plaintiff?”
5.Though the respondent was served through Court notice and his name
is also printed in the cause list, there is no appearance on his behalf.
6.The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this Court
to answer the substantial question of law in favour of the appellant and set
aside the impugned judgment and decree and restore the decision of the trial
Court.
7.I carefully considered the said contentions advanced by the learned
counsel appearing for the appellant and went through the evidence on record.
According to the plaintiff, the suit property is his ancestral property. There is
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S.A.(MD)No.930 of 2008
no dispute that against the appellant's father namely, Karuppanamaniyam, the
respondent herein namely, Selvam filed O.S.No.107 of 1996 before the District
Munsif Court, Andipatti, in respect of the suit property. The suit schedule in
O.S.No.107 of 1996 is as follows:-
“S.No.778/7 at Thimmarasanayakkanur Village,
Andipatti Taluk, Periyakulam, Madurai District to an extent of
14 cents vacant site. The description of the suit schedule is as
follows:-
'South to Kambathadiayan Perumal's land
East and North to the street,
West to S.Perumal Konar's land.'”
8.The suit was dismissed on 14.10.1997. No appeal was filed against the
judgment and decree and the said decision has become final. The said suit was
for declaration as well as injunction. The relief of declaration was denied. It
was further found that Selvam failed to establish his possession over the suit
property. The said judgment and decree have been marked in the present
proceedings by the appellant herein as Exs.A1 and A2. I compared the present
suit schedule with the suit schedule in O.S.No.107 of 1996. They are one and
the same. The plaintiff has marked Exs.A3 and A4, which are chitta and
adangal for fasli year 1387. The defendant had also marked Ex.B4/chitta for
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S.A.(MD)No.930 of 2008
the fasli year 1394. But this Ex.B4 was marked as Ex.A4 in the earlier suit and
the same was rejected. The case of the respondent was that he purchased the
suit property from one Nallathambi. The said Nallathambi is said to be the
brother of Ayyanar Konar, whose name figures in the joint patta, which was
marked Ex.B3. The trial Court has rendered a finding that it has not been
shown as to how the respondent's vendor Nallathambi acquired title over the
suit property. When the case of the respondent that he is the owner of the suit
property and his claim that he is in possession was already negatived in the
earlier suit filed by him, a contra view could not be taken in the present case,
moreso, when the plaintiff had filed Ex.A3 and A4. The trial Court had
correctly approached the issues. The first appellate Court erred in not taking
note of Exs.A1 and A2. Exs.A3 and A4 should have been construed in the light
of Exs.A1 and A2. Failure to do so had vitiated the impugned judgment and
decree. I therefore answer the substantial question of law in favour of the
appellant. The second appeal is allowed. The impugned judgment and decree
is set aside and the decision of the trial Court is restored. No costs.
30.09.2021
Index : Yes / No
Internet : Yes/ No
ias
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.930 of 2008
G.R.SWAMINATHAN, J.
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.
To:
1.The Sub Court,
Periyakulam.
2.The District Munsif Court,
Andipatti.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.930 of 2008
30.09.2021
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