Madras High Court
A.Jeyalakshmi vs D.Premkumar ... 1St on 20 April, 2022
S.A.(MD)Nos.338 & 339 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.338 & 339 of 2010
and
M.P.(MD)No.1 of 2010
In S.A.(MD)No.338 of 2010
1.A.Jeyalakshmi
2.A.Chelladurai ... Appellants / Appellants / Defendants 1 & 2
-Vs-
1.D.Premkumar ... 1st Respondent / 1st Respondent / Plaintiff
2.Thangammal ... 2nd Respondent / 2nd Respondent / 3rd Defendant
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.134 of 2003 on the
file of the Additional District Court / Fast Track Court No.1, Thoothukudi,
dated 05.10.2009 confirming the judgment and decree in O.S.No.202 of
1996 on the file of the Sub Court, Thoothukudi, dated 07.07.2003.
For Appellants : Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.S.Yasar Asarath
For R1 : Mr.M.P.Senthil
https://www.mhc.tn.gov.in/judis
S.A.(MD)Nos.338 & 339 of 2010
In S.A.(MD)No.339 of 2010
A.Jeyalakshmi ... Appellant / Appellant / Plaintiff
-Vs-
D.Premkumar ... Respondent / Respondent / Defendant
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, by setting aside the judgment and decree passed in A.S.No.208 of
2003 on the file of the Additional District Court / Fast Track Court No.1,
Thoothukudi, dated 05.10.2009 confirming the judgment and decree in
O.S.No.80 of 1997 on the file of the Sub Court, Thoothukudi, dated
07.07.2003.
For Appellant : Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.S.Yasar Asarath
For Respondent : Mr.M.P.Senthil
COMMON JUDGMENT
The first appellant herein namely A.Jeya Lakshmi filed O.S.No.166
of 1996 on the file of the District Munsif Court, Tuticorin seeking
permanent injunction restraining the first respondent herein namely Prem
Kumar from interfering with her possession and enjoyment of the suit items
1 & 2. The first respondent herein filed O.S.No.202 of 1996 on the file of
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S.A.(MD)Nos.338 & 339 of 2010
the Sub Court, Tuticorin, seeking the relief of declaration and recovery of
possession in respect of the suit items 1 to 3. O.S.No.166 of 1996 was
transferred to the file of the Sub Court, Tuticorin and renumbered as
O.S.No.80 of 1997 and tried along with O.S.No.202 of 1996. Based on the
divergent pleadings, in both the suits, issues were framed. Prem Kumar was
examined as P.W.1. Three other witnesses were examined on his side.
Ex.A1 to Ex.A22 were marked. Kamaraj Son of Jeya Lakshmi was
examined as D.W.1. Ex.B1 to Ex.B23 were marked. After considering the
evidence on record, by judgment and decree dated 07.07.2003, the trial
court dismissed the suit filed by Jeya Lakshmi and decreed the suit filed by
Premkumar as prayed for. In the suit filed by D.Prem Kumar, there were
three defendants. While the 3rd defendant Thangammal did not challenge
the judgment and decree rendered against her, the appellants alone filed
A.S.No.134 of 2003 and A.S.No.208 of 2003. Both the appeals were
dismissed by the first appellate Court by the impugned judgment and decree
dated 05.10.2009. Aggrieved by the same, the second appeals have been
filed. S.A.(MD)No.338 of 2010 arises out of O.S.No.202 of 1996, while
S.A.(MD)No.339 of 2010 arises out of O.S.No.80 of 1997. Though these
appeals were filed in the year 2010, till date, they have not been admitted.
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S.A.(MD)Nos.338 & 339 of 2010
2. The learned senior counsel appearing for the appellants reiterated
all the contentions set out in the memorandum of grounds and called upon
this Court to frame the substantial question of law and admit these second
appeals and then take them up 'for disposal'.
3. Per contra, the learned counsel appearing for the first respondent
D.Prem Kumar submitted that the impugned judgment and decree do not
call for any interference.
4. I carefully considered the rival contentions and went through the
evidence on record.
5. Though the first respondent sought the relief of declaration and
recovery of possession in respect of all the three suit schedules, the contest
in these appeals revolves only around the suit schedules 1 & 2. Admittedly,
the first appellant herein Jeya Lakshmi does not have any title document in
respect of the suit 1st schedule. The courts below have concurrently found
that the documents filed by the first appellant do not correlate to suit 1st
schedule and held against her. As regards the suit 2nd schedule, the first
appellant claimed title by virtue of the sale deed dated 09.09.1992 executed
by one Krishnadoss. The courts below have found that there was nothing
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S.A.(MD)Nos.338 & 339 of 2010
on record to show that the vendor Krishnadoss had any right or title or
interest over the suit schedule. In fact, Ex.B21-sale deed dated 09.09.1992
did not pertain to the suit 2nd schedule at all. Only by virtue of the
rectification deed, a right was sought to be established over the suit 2nd
schedule. The courts below have noted that the rectification deed dated
09.08.1997 came into existence after the filing of the suit and rightly
ignored the same.
6. The learned senior counsel appearing for the appellants would
point out that the entire case of the first respondent is anchored on Ex.A8,
Ex.A9 & Ex.A10. He would point out that these pattas were issued in
favour of the first respondent's vendor on the same date and in clear
violation of the G.O.Ms.No.376, Revenue Department dated 08.03.1988.
The said G.O was marked as Ex.B5. I went through the contents of the said
G.O. The said G.O prohibits and bans assignment of the land within 16
kilometers of the District Headquarters. Ex.A8 to Ex.A10 are not
assignment pattas. They are regular revenue pattas. Therefore, the issuance
of Ex.A8 to Ex.A10 will not fall within the prohibition set out in Ex.B5-
G.O. The courts below have found that the vendor of the first respondent
herein was in possession of the suit property for a long period and in
recognition of the same, Ex.A8 to Ex.A10 were issued. From the said three
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S.A.(MD)Nos.338 & 339 of 2010
pattadhars, the plaintiff had purchased the suit schedule items under Ex.A1
dated 28.01.1993, Ex.A5 dated 24.11.1995 & Ex.A7 dated 31.01.1993. The
first respondent had also been issued with patta by the competent authority.
The courts below after a careful consideration of the entire evidence on
record came to the conclusion that the first respondent herein had
established better title compared to the appellants herein. No doubt, the
first appellant also produced some documents which were of the year 1974.
But then, those documents do not pertain to the suit property. They pertain
to the property comprised in Ward No.20 whereas the suit schedule item is
located in Ward No.21.
7. I am only exercising jurisdiction under Section 100 of C.P.C. The
first appellate court is the final court of fact. Unless its findings are shown
to be perverse, I cannot interfere. No substantial question of law is
involved. These second appeals are dismissed. No cost. Consequently,
connected miscellaneous petition is closed.
20.04.2022
Internet : Yes/Nop
Index : Yes/No
rmi
To
1.The Additional District Court / Fast Track Court No.1, Thoothukudi.
https://www.mhc.tn.gov.in/judis
S.A.(MD)Nos.338 & 339 of 2010
2.The Sub Court, Thoothukudi.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
G.R.SWAMINATHAN.J.,
https://www.mhc.tn.gov.in/judis
S.A.(MD)Nos.338 & 339 of 2010
rmi
Judgment made in
S.A.(MD)Nos.338 & 339 of 2010
20.04.2022
https://www.mhc.tn.gov.in/judis
