Madras High Court
S.Raju (Died) vs M.D.Raju (Died) on 11 April, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.04.2022
CORAM:
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD) No.562 of 2010
1.S.Raju (died)
2.R.Bethan
3.Perumal
4.Chandra
5.Punniyakodi
6.Alagammal @ Vanitha ... Appellants/Respondents/Defendants
(Appellants 3 to were brought on record
as the Lrs of the deceased 1st appellant
vide order dated 17.03.2016)
v.
1.M.D.Raju (died)
2.R.Kaliakkal
3.R.Sukumar
4.R.Jeyakumar
5.R.Ponnammal
6.R.Saraswathi
Page 1 of 9
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7.R.Gunasekaran
8.R.Elango ... Respondents
(Respondents 2 to 8 were brought on
record as the LRs of the deceased first
respondent vide order dated 17.03.2016)
Prayer :- Second Appeal filed under Section 100 of Civil Procedure Code
against the judgment and decree dated 25.08.2009 in A.S No.429 of
2004 on the file off the Principal Subordinate Judge, Dindigul reversing
the judgment and decree dated 18.07.2001 made in O.S No.1338 of
1996 for the relief of declaration and possession and for permanent
injunction regarding “A” schedule suit property alone, on the file of the
First Additional District Munsif Court, Dindigul.
For Appellants : Mr.S.Vijayasanthi
For Respondents : Mr.H.Lakshmi Shankar
for R2 to R4 and R6 to R8
JUDGMENT
The defendants in O.S No.1338 of 1998 on the file of the First
Additional District Munsif Court, Dindigul filed this second appeal.
During the pendency of the appeal, the first appellant passed away.
The second appellant is the son and the other legal heirs have also
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been brought on record. The suit was filed for the relief of declaration,
recovery of possession, mesne profits and for the relief of damages
also. The suit property is comprised in Survey No.476/6 in Pallapatti
and measures an extent of 57 square meters. The case of the plaintiff
is that this is a Natham property and that he has been in possession
and enjoyment of the same from the year 1978 onwards and
recognizing the same and overruling the objections raised by the first
defendant, he was issued with Ex.A2 patta based on the proceedings of
the Natham Special Tahsildar issued vide Ex.A1 dated 15.11.1993. On
the other hand, the first defendant anchored his entire defence on the
assignment patta dated 28.01.1954 (Ex.B1). Though the assignment
patta states that an extent of four cents of land was assigned in favour
of the first defendant's father in Survey No.476/2, it is not in dispute
that it was later sub-divided. According to the defendants, the said
property is covered by the order of assignment (Ex.B1) dated
28.01.1954. Based on the divergent pleadings, the trial court framed
the necessary issues. The plaintiff examined himself as PW.1. Two
other witnesses were examined on his side. Exs.A1 to A17 were
marked. The second defendant examined himself as DW.1 and one
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Anthonysamy was examined as DW.2. Exs.B1 to B14 were marked.
Advocate Commissioner was appointed and his reports and plan were
marked as Exs.C1 to C4. Through the witnesses, three documents
were also marked. After considering the evidence on record, the trial
court by judgment and decree dated 18.07.2001 dismissed the suit.
Challenging the same, the plaintiff filed A.S No.429 of 2004 on the file
of the Principal Subordinate Court, Dindigul. He also filed I.A No.299 of
2007 for marking additional evidence. The plaintiff's request for
adducing additional evidence was accepted and Ex.A18 (House Tax
Receipt) and was allowed to be marked. The first appellate court by
the impugned judgment and decree dated 25.08.2009 reversed the
decision of the trial court and granted relief to the plaintiff in respect of
the prayer for declaration and recovery of possession. However, the
prayer for mesne profits and damages was negatived. Challenging the
same, the defendants filed this second appeal.
2.The second appeal was admitted on 05.07.2010 on the
following substantial questions of law :
“1.Whether the lower appellate court is right in
reversing the judgment and decree passed in O.S No.
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1338 of 1996 by appreciating Exs.A3 to A13 and Ex.A18
the tax receipts after the year of 1980?
2.Whether the lower appellate court is right in
reversing the judgment and decree of the trial court
based on the patta granted by the Tahsildar in favour of
the plaintiff in the year 1993 when the settled proposition
of law says that patta does not confer title over the
property?
3.Whether the lower appellate court is right in
holding that the plaintiff was in possession and
enjoyment of the suit property based on the oral
deposition of PW.3 when there is no iota of evidence
produced before the trial court to prove his possession in
the suit property ?
4.Whether the lower appellate court is right in
holding that the suit properties are belonged to the
plaintiff as per the exhibits A3 to A13 the tax receipts for
the suit property when the Commissioner Report clearly
says that the suit property is a vacant site which
averment correlated with the Survey register ?
5.Whether the lower appellate court is right in
decreeing the suit regarding the relief of declaration and
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for recovery of possession and for permanent injunction
when the appellate court dismissed the relief of
damages, past loss and future loss in respect of “A”
Schedule of property as the plaintiff has failed to prove
the same?”
3.The learned counsel appearing for the appellants 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
appellants and set aside the impugned judgment and decree and
restore the decision of the trial court. Per contra, the learned counsel
appearing for the respondents submitted that the impugned judgment
and decree do not call for any interference. He prayed for dismissal of
the second appeal.
4.I carefully considered the rival contentions and went through
the evidence on record. There is no dispute that in the year 1952, the
father of the first defendant namely Subban was assigned four cents of
land in Survey No.476/2. But a measurement on ground clearly reveals
that the assigned land was not only lying intact in the hands of the
appellant but they have occupied a little more extra. The categorical
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finding of the Natham Tahsildr in his order in Ex.A1 is that the land
measuring 57 square meters comprised in Survey No.476/6 is lying
distinctly and apart from what was assigned in favour of the first
defendant's father. The further finding in Ex.A1 is that what was
assigned in favour of the first defendant's father is comprised in Survey
No.476/5. The defendants no doubt challenged Ex.A1 before the
Revenue Divisional Officer, Dindigul. The appeal was dismissed. But
thereafter the defendants have not mounted any challenge before the
High Court. On the other hand, they filed a suit for declaration and
recovery of possession in O.S No.1120 of 1993 before the Principal
District Munsif, Dindigul. But the said suit was dismissed for default on
21.09.1994. While so dismissing, cost was imposed. The plaintiff
recovered the same by filing an execution petition. From the fact that a
suit for declaration of title and recovery of possession was filed and that
the same was allowed to be dismissed for default and that no steps
were taken for restoring the same, the court can presume under Section
114 of the Indian Evidence Act, 1872 that the plaintiff who filed the suit
was not quite sure of his title. In the case on hand, by marking
Exs.A1 and A2, the plaintiff had demonstrated his title over the suit
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property. On the contrary, there is absolutely no case was made out by
the defendants to show their title or possession over the suit property.
That is why, the first appellate court rightly reversed the decision of the
trial court and held in favour of the plaintiff. The substantial questions
of law are answered against the appellants. The impugned judgment
and decree passed by the first appellate court do not call for any
interference. The second appeal stands dismissed. No costs.
11.04.2022
Internet : Yes / No
Index : Yes / No
skm
To
1.The Principal Subordinate Judge, Dindigul.
2.The First Additional District Munsif Court, Dindigul.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN, J.
skm
S.A.(MD) No.562 of 2010
11.04.2022
https://www.mhc.tn.gov.in/judis
