Madras High Court
S.Saravanan vs Padmavathy Ammal (Died) on 1 April, 2022
S.A.(MD)No.967 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.967 of 2010
S.Saravanan ... Appellant / Appellant / Plaintiff
-Vs-
1.Padmavathy Ammal (died)
2.State of Tamil Nadu
by its District Collector,
Tirunelveli District.
3.The Assistant Director,
Khadi Handloom Department,
Palayamkottai, Tirunelveli.
4.Sankaravadivu
5.Gopalsamy
6.Shanmugathai ... Respondents / Respondents / Defendants
7.Sudalaiyandi
8.Shanthi
9.Sivasankari
10.Karthika
(Respondents 7 to 10 are suo motu impleaded as Lrs of
the deceased 1st respondent vide order dated 15.03.2022) ... Respondents
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S.A.(MD)No.967 of 2010
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 16.04.2009 passed in A.S.No.
26 of 2008 on the file of the Principal Subordinate Court, Tenkasi
confirming the judgment and deree dated 22.01.2008 passed in O.S.No.52
of 2005 on the file of the District Munsif Court, Sengottai.
For Appellant : Mr.R.J.Karthick
For R2 : Mr.R.Ragavendran
Government Advocate
For R3 : Mr.Raguvaran Gopalan
For R4, R5 & R6 : no appearance
For R7 to R10 : Mr.M.Sridharan
for Mr.K.Kumaravel
JUDGMENT
The plaintiff in O.S.No.52 of 2005 on the file of the District Munsif
Court, Sengottai is the appellant in this second appeal.
2. The suit was filed for declaration that the suit 2nd schedule belongs
to the plaintiff and for permanent injunction restraining the first defendant
from putting up any construction thereon. The plaintiff also sought a
similar relief of declaration in respect of the 3rd schedule property.
He wanted recovery of possession of the 3rd schedule property from the
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S.A.(MD)No.967 of 2010
third defendant and for mandatory injunction to remove the compound wall
put up on the 3rd schedule. The first defendant filed counter claim seeking
declaration that the suit 2nd schedule property is a common pathway
belonging to the plaintiff and the first defendant. The first defendant also
sought mandatory injunction for removal of the construction put up thereon.
Khadi Board filed written statement controverting the plaint averments.
Based on the divergent pleadings, the trial court framed as many as 18
issues. The plaintiff examined himself as P.W.1 and marked Ex.A1 to
Ex.A10. The first defendant examined herself as D.W.1 and one Karuppayi
was examined as D.W.2. An official of the survey department was
examined as D.W.3. On behalf of the Khadi Board, an official by name
Meenakshi Sundaram was examined as D.W.4. Ex.B1 to Ex.B17 were
marked. An Advocate Commissioner was appointed and his report and plan
were marked as Ex.C1 & Ex.C2. The surveyor's sketch was marked as
Ex.C3. After consideration of the evidence on record, the trial court by
judgment and decree dated 22.01.2008 dismissed the suit and partly decreed
the counter claim. The relief of declaration was granted as sought for in the
counter claim over a portion of the 1st schedule measuring 16 feet east-west
and 49.6 feet north-south. Permanent injunction was granted in favour of
the first defendant against the plaintiff and other defendants in respect of
the said portion. Aggrieved by the same, the plaintiff filed A.S.No.26 of
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S.A.(MD)No.967 of 2010
2008 before the Principal Sub Court, Tenkasi. By the impugned judgment
and decree dated 16.04.2009, the decision of the trial court was confirmed
and the first appeal came to be dismissed. Challenging the same, this
second appeal was filed. The second appeal was admitted on 06.01.2011 on
the following substantial questions of law:-
“1.Whether the courts below have committed an error in giving a
finding that the suit is barred by limitation without framing a specific issue
to that effect?
2. Whether Ex.B13-Gift Deed could not have been used in evidence
in the absence of proof of the same in accordance with the requirements of
Section 68 of the Indian Evidence Act and in the absence of evidence
bringing it under the purview of Section 69 of the Indian Evidence Act?
3. Whether the courts below have committed an error in refusing
to grant atleast a lesser relief than the one prayed for, when the courts have
come to a conclusion that only in respect of a portion of the suit property,
the plaintiff was not having title?”
3.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 questions of law in favour of the appellant
and set aside the impugned judgment and decree and decree the suit as
prayed for.
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S.A.(MD)No.967 of 2010
4. During the pendency of the second appeal, the first respondent /
first defendant passed away and his legal heirs have come on record. The
learned counsel appearing for the legal heirs of the first respondent
submitted that the impugned judgment and decree do not call for any
interference.
5. The learned standing counsel appearing for Khadi Board supported
the impugned judgment and decree insofar as it negatived the plaintiff's
claim against the Board.
6.I carefully considered the rival contentions and went through the
evidence on record.
7.The plaintiff traces his title to Ex.A1 dated 26.09.1941. It is a sale
deed standing in the name of the plaintiff's grandfather namely Vellaiah
Thevar. Under Ex.A1, the plaintiff's grandfather purchased 19 cents from
one Nallasivan Pillai. Though it is not specifically established, it appears
that there was a family partition in which Vellaiah Thevar was allotted 9 ½
cents of land. The said 9 ½ cents of land corresponds to suit 1st schedule.
Following the demise of Vellaiah Thevar, the suit 1st schedule devolved on
the plaintiff's father Subbiah Thevar. Subbiah Thevar sold 4.68 cents of
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S.A.(MD)No.967 of 2010
land in favour of the first defendant Padamavathi vide sale deed dated
27.10.1986 (Ex.A2). The first defendant purchased the eastern portion of
suit 1st schedule. The four boundaries have been given as follows:-
to the south of east-west street, to the west of
Sankarammal's house site, to the north of village chavadi and to
the east of the portion retained by the vendor and north-south
pathway to be commonly used by the vendor and the purchaser.
The dimensions are as follows:-
east-west – 15 carpenter's cubit feet
north-south – 18 carpenter's cubit feet.
8. One carpenter's cubit feet is equal to 2.75 feet. Therefore, the
property purchased by Padmavathy under Ex.A2 measured east-west 41.25
and north-south 49.5. The portion retained by the plaintiff's father
measured 57.75 feet north-south and 71.5 feet east-west. Since under
Ex.A2, 41.25 feet had already been sold, what remained with the plaintiff's
father was only 30.25 feet east-west. D1 had made further alienations in
favour of D5 & D6 under Ex.A4 dated 12.03.2001 and in favour of D4
under Ex.A5 dated 22.01.2003. These factual aspects are beyond dispute.
The first defendant Padmavathy was therefore entitled to only that portion
of the 1st schedule minus what was sold in favour of the 4th defendant and 5
and 6 defendants respectively.
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S.A.(MD)No.967 of 2010
9. A simple calculation would reveal that Padmavathy Ammal was
entitled to that portion of the property measuring 41.25 feet east-west and
49.5 feet north-south. Of-course, Padmavathy Ammal would also be
entitled to use the common pathway on the western side. Ex.A2 is however
silent as regards the width of the common pathway. One can therefore
safely assume that the width of the pathway will be two feet. The plaintiff
would definitely be entitled to declaration and permanent injunction in
respect of the western portion of the suit 1 st schedule measuring 28.25 feet
east-west and 57.75 feet north-south. That portion of the property
measuring 2 feet east-west and 49.5 feet north-south lying in between the
property of the first defendant and that of the plaintiff will have to be used
only as a common pathway. Neither the plaintiff nor the legal heirs of the
first defendant can put up any construction thereon. Since the plaint
schedule does not appear to have been correctly described, a fresh schedule
is drawn and annexed to the decree passed therein. The first substantial
question of law is answered accordingly against the appellant.
10. The third defendant is the Khadi Board. Khadi Board had
purchased the 3rd schedule. The property to the south of the first schedule
was gifted to the Khadi Board by a third party. Khadi Board had also put
up their construction some time in the year 1989. They had also erected a
compound wall.
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S.A.(MD)No.967 of 2010
11. The present suit was filed only in the year 2005. Therefore, the
courts below rightly held that the suit was hopelessly barred by limitation.
The first substantial question of law is whether the courts below could have
non-suited the plaintiff even without framing an issue. It is too well settled
that it is the duty of the Court to reject a claim if it is bared by limitation.
Section 3 of the Limitation Act states that a suit or an appeal or an
application if made after the prescribed period shall be dismissed, even if
limitation has not been set up as a defence. Therefore, non-framing to an
issue on the point of limitation is not material. The first substantial
question of law is answered against the appellant. The second and third
substantial questions of law are answered in favour of the appellant. The
impugned judgment and decree is accordingly modified. The decree shall
be read along with the schedule annexed hereto. The second appeal is
partly allowed. No cost.
01.04.2022
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.967 of 2010
To
1.The Principal Subordinate Court, Tenkasi.
2.The District Munsif Court, Sengottai.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.967 of 2010
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.967 of 2010
01.04.2022
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