Madras High Court
Valambal vs Mariyayee on 7 April, 2022
S.A.(MD)No.570 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.570 of 2010
Valambal ... Appellant / Appellant / Defendant
-Vs-
Mariyayee ... Respondent / Respondent / Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed by the II Additional
Subordinate Judge, Tiruchirappalli in A.S.No.105 of 2006 dated 30.07.2009
confirming the decree and judgment dated 28.02.2006 on the file of the
learned District Munsif cum Judicial Magistrate, Lalgudi in O.S.No.561 of
1996.
For Appellant : Mr.S.K.Mani
For Respondent : Mrs.J.Maria Roseline
JUDGMENT
The defendant in O.S.561 of 1991 on the file of the District Munsif
Court, Lalgudi is the appellant in this second appeal.
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S.A.(MD)No.570 of 2010
2. The suit was filed by the respondent herein for declaration that the
suit property belongs to her and for recovery of possession from the
appellant herein. The appellant filed written statement controverting the
plaint averments. Based on the divergent pleadings, the trial court framed
the necessary issues. The plaintiff examined herself as P.W.1. Ex.A1 to
Ex.A6 were marked. The defendant examined herself as D.W.1. Ex.B1 to
Ex.B3 were marked. After consideration of the evidence on record, by
judgment and decree dated 28.02.2006 decreed the suit as prayed for.
Aggrieved by the same, the defendant filed A.S.No.105 of 2006 before the
II Additional Sub Court, Tiruchirappalli. By the impugned judgment and
decree dated 30.07.2009, the decision of the trial court was confirmed and
the appeal was dismissed. Challenging the same, the second appeal came to
be filed. The second appeal was admitted on 12.07.2010 on the following
substantial questions of law:-
“(i) Whether immovable properties described in the sale deeds can be
presumed to be either same or situate adjoining without any reference to the
boundaries and extent?
(ii) Whether the origin of title to the suit property need not be proved as
pleaded?
(iii) Whether presumptions can be made in the matter of boundaries
without there being any evidence?
(iv) Whether the doctrine that boundaries prevail over extent will be
applicable even where two equal extents admeasuring 2,976 sq.feet are said to
constitute a smaller extent of 3,405 sq.feet (Ex.A1)?”
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S.A.(MD)No.570 of 2010
3. The learned counsel appearing for the appellant reiterated 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 dismiss the suit.
4. Per contra, the learned counsel appearing for the respondent
submitted that the impugned judgment and decree do not call for any
interference.
5. I carefully considered the rival contentions and went through the
evidence on record.
6. The case of the plaintiff was that the suit property including the
adjacent site originally belonged to one Sabapathi Ayyar. The said
Sabapathi Ayyar purchased a piece of property under Ex.A1 dated
25.01.1936 from one Mottai Udayar. The said Sabapathi Ayyar had a son
by name Kailasam Ayyar. The said Kailasam Ayyar had two sons namely
Umakanthan and Sabapathi (for easy reference junior). There was oral
partition between the said junior Sabapathi and Umakanthan. The junior
Sabapathi sold what was allotted to him in favour of Kulunthayi Ammal
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S.A.(MD)No.570 of 2010
under sale deed-Ex.A2 dated 23.07.1979. The portion allotted to
Umakanthan was purchased by the plaintiff under sale deed-Ex.A3 dated
22.12.1987. However, the defendant managed to occupy the property
purchased by the plaintiff under Ex.A3. Therefore, the plaintiff had to file
the said suit for declaration and recovery of possession.
7. The courts below accepted the stand of the plaintiff and decreed
the suit as prayed for. The learned counsel appearing for the appellant
pointed out that under Ex.A1, senior Sabapathi had purchased a piece of
land. He highlighted the dimensions of the said property. He pointed out
that if the sales made by his grandsons namely Umakanthan and junior
Sabapathi are added, that would certainly go beyond the dimensions of the
property covered under Ex.A1. He also pointed out that the suit property is
actually a grama natham. It was the defendant who is in possession and
enjoyment of the same. Grama natham belongs to the person who is in
occupation of the same. In order to prove her possession, the defendant had
marked the house tax receipts for the same. In fact, recognizing her
possession, the revenue authorities also made an assignment in her favour.
The assignment was later erroneously cancelled. Challenging the same, the
defendant had also filed the suit. The suit as well as the first appeal had
suffered dismissal. The defendant has filed the second appeal before this
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S.A.(MD)No.570 of 2010
Court. The learned counsel appearing for the appellant called upon this
Court to defer hearing this appeal so that both appeals could be heard
together.
8. I am not persuaded by the submission of the learned counsel
appearing for the appellant. I do not find any merit in the contention that if
the sales made by the grandsons of senior Sabapathi are taken into account,
they would go beyond what was actually purchased under Ex.A1. I went
through the contents of Ex.A1. The property description given therein is
quite significant. The piece of land purchased under Ex.A1 dated
25.01.1936 from one Mottai Udayar was bounded on two sides by the other
lands owned by senior Sabapathi. Therefore, the validity of the sale made
in favour of the plaintiff herein cannot be tested with reference to the
dimensions of the land covered under Ex.A1.
9. More than anything else, the description of the property covered
under Ex.A2 is significant. As already pointed out, the appellant's mother-
in-law Kulunthayi Ammal is the purchaser under Ex.A2. It states that the
property purchased under Ex.A2 is lying to the north of the site belonging
to Umakanthan. Umakanthan is none other than the brother of junior
Sabapathi. The appellant cannot wriggle out of the said boundary
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S.A.(MD)No.570 of 2010
description. The property referred to in Ex.A2 as southern boundary was
purchased by the plaintiff under Ex.A3 dated 22.12.1987.
10. The courts below have taken note of the fact that the appellant
herein already filed O.S.No.405 of 1987 seeking injunction against the
plaintiff. Though the said suit was decreed, it was reversed in A.S.No.15 of
1992. The judgment and decree made in A.S.No.15 of 1992 has been
marked as Ex.A5 & Ex.A6 dated 31.07.1996. The courts below have
anchored their decision on the said exhibits. The courts below have
correctly appreciated the boundary descriptions set out in the title
documents namely Ex.A1, Ex.A2 & Ex.A3. The substantial questions of
law are answered against the appellant. I do not find any ground to
interfere. The impugned judgment and decree are confirmed. The second
appeal is dismissed. No cost.
07.04.2022
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.570 of 2010
To
1.The II Additional Subordinate Judge, Tiruchirappalli.
2.The District Munsif cum Judicial Magistrate, Lalgudi.
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.570 of 2010
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.570 of 2010
07.04.2022
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