Madras High Court
Henry Albert vs Ananthajothi on 2 December, 2022
SA(MD)No.675 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 02.12.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
SA(MD)No.675 of 2022
and
CMP(MD)No.9816 of 2022
Henry Albert
Rep. by his Power Agent
Mr.Sivakumardas ... Appellant
versus
1. Ananthajothi
2. N.Maripandi ... Respondents
Second Appeal filed under Section 100 of Civil Procedure Code,
against the Judgment and Decree dated 06.08.2019 passed in A.S.No.5 of
2017 on the file of the learned Principal Sub Judge, Tirunelveli,
confirming the Judgment and Decree dated 19.10.2016 passed in O.S.No.
219 of 2011 on the file of the Principal District Munsif Court, Tirunelveli.
For Appellant : Mr.G.Prabhu Rajadurai
For R2 : Mr.H.Arumugam
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SA(MD)No.675 of 2022
JUDGMENT
This Second Appeal is filed against the Judgment and Decree
dated 06.08.2019, made in A.S.No.5 of 2017 on the file of the learned
Principal Sub Judge, Tirunelveli, confirming the Judgment and Decree
dated 19.10.2016, made in O.S.No.219 of 2011 on the file of the Principal
District Munsif Court, Tirunelveli.
2. The first defendant in O.S.No.219 of 2011 is the appellant
herein. The plaintiff in O.S.No.219 of 2011 is the second respondent
herein. The second defendant in O.S.No.219 of 2011 is the first
respondent herein.
3. The suit in O.S.No.219 of 2011 was filed by the second
respondent/plaintiff before the Principal District Munsif Court,
Tirunelveli, seeking the relief of declaration and permanent injunction in
respect of the suit property in S.No.757/3, to an extent of 0.94.50 hectare,
equal to 2.34 Acres comprised in old Patta No.230 and New Patta No.
1620 at Kulavanigarpuram Village, Palayamkottai Taluk, Tirunelveli
District.
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SA(MD)No.675 of 2022
4. After considering the oral and documentary evidence, the
trial Court, by Judgment and Decree dated 19.10.2016 decreed the suit in
favour of the plaintiff. Aggrieved over the same, the defendants filed an
appeal suit before the Principal Sub Court, Tirunelveli, in A.S.No.5 of
2017. The First Appellate Court also, by Judgment and Decree dated
06.08.2019, dismissed the appeal suit, by confirming the decree passed by
the trial Court. Aggrieved over the concurrent findings of the Courts
below, the appellant/first defendant has filed the present Second Appeal
on the following substantial questions of law:
(i) Whether the Courts below is correct in law in
interpretation of the decree passed in O.S.No.75 of 1952
and marked as Ex.B3 when the decree clearly denotes the
suit property?
(ii) Whether the Courts below are correct in law in
placing the burden upon the defendants to prove the title of
the suit property particularly when it is for the plaintiff to
show the title?
(iii) Whether the Courts below are correct in law
in overlooking the fact that the plaintiff failed to prove the
Will marked as Ex.A25 in the manner known to law?
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SA(MD)No.675 of 2022
5. The learned counsel appearing for the appellant submits that
the suit schedule property in Survey No.757/3 was the subject matter of
the suit in O.S.No.75 of 1952. The suit in O.S.No.75 of 1952 was
decreed on a compromise memo and the suit schedule property was
allotted to his vendors/defendants 1 to 3 in O.S.No.75 of 1952. The
appellant purchased the property from the defendants 1 to 3 in O.S.No.75
of 1952, by way of a registered sale deed dated 26.03.2002. After the
purchase, the patta was also transferred in his name and the revenue
records also stand in his name. However, the Courts below, based on the
Will dated 06.02.1990, which was marked as Ex.P25, granted the decree
in favour of the plaintiff. But, the original Will was not placed before the
Court and the Will was not proved in the manner known to law.
Therefore, the Courts below failed to consider the decree passed in
O.S.No.75 of 1952, which was also marked as Ex.D3.
6. The learned counsel appearing for the second
respondent/plaintiff submits that the plaintiff has proved his title through
registered sale deeds Ex.A2, A3 and A5. The plaintiff has also proved the
Will dated 06.02.1990, which was marked as Ex.A25, by examining
P.W.2 and he has also produced a certified copy of the Will before the
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SA(MD)No.675 of 2022
trial Court. He further submits that when the Will dated 06.02.1990 is a
registered one, the non-production of original Will is not fatal to the case
of the plaintiff. He further submits that the first defendant has taken a
stand as if the suit schedule property in Survey No.757/3 was the subject
matter of the suit in O.S.No.75 of 1952. But, the suit property in O.S.No.
75 of 1952 was not the subject property of the present suit. Hence, the
defendants have no right over the suit schedule property.
7. This Court considered the rival submissions made and also
perused the materials available on record.
8. The case of the plaintiff is that the suit property originally
belonged to one Nambi Konar and Subbiah Konar comprised in Patta No.
230. The legal heirs of Nambi Konar and Subbiah Konar sold the
property to one Nabmi Reddiyar, S/o. Thadi Veeran Reddiyar through
registered sale deeds dated 12.09.1960, 29.08.1960, 19.10.1964 and
21.12.1964. The said Nambi Reddiyar purchased the property from all
the legal heirs, except the legal heirs of Subbiah Konar, namely, Nalla
Perumal, Murugan and Subbiah. Nambi Reddiyar executed a registered
Will dated 06.02.1920 in favour of his second daughter Sankaralakhsmi.
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SA(MD)No.675 of 2022
Therefore, the said Sankaralakhsmi became the absolute owner of the
property. She also executed a power of attorney dated 31.12.2009 in
favour of Narayanan @ Kannan and Ramiah @ Anand. The said
Murugan and Subbiah gave power to one A.Malaiyandi on 26.11.2010.
Thereafter, the plaintiff herein purchased the suit property from the said
Sankaralakshmi as well as Malaiyandi, under registered sale deed dated
30.12.2010. Therefore, the plaintiff herein has become the absolute
owner of the property. Further, the patta in respect of the suit property
also changed in the name of the plaintiff. Therefore, the defendants have
no title over the property.
9. It is the further case of the plaintiff that the first defendant
claimed title through the decree passed in O.S.No.75 of 1952 and
consequential sale deed dated 25.07.1975 executed by one Ramasamy
Nadar. But, the suit property was not the subject matter of the present
suit. Therefore, the first defendant has no right over the property. The
second defendant himself filed a suit in O.S.No.518 of 1995 against one
Pitcha Konar for declaration and injunction on the basis of the said
compromise decree and sale deed. But, the said suit came to be dismissed
on merits holding that the present suit property and another property in
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SA(MD)No.675 of 2022
S.No.757/2 were not the subject property in the present suit, hence, the
defendants have no right over the suit schedule property.
10. The case of the first defendant that his vendor in title
occupied the suit schedule property by Judgment and Decree in O.S.No.
75 of 1952 and he purchased the same from the Decree-holder by way of
a registered sale deed dated 26.03.2002. After his purchase, the patta was
transferred in his name and the revenue record also stands in his name.
The decree in O.S.No.75 of 1952 was marked as Ex.B3 and the patta was
also marked as Ex.B1.
11. The plaintiff claims title through Exs.A2, A3 and A5. The
suit property originally belonged to one Nambi Konar and Subbiah
Konar. The legal heirs of Nambi Konar sold the property to one Nambi
Reddiar through registered sale deeds dated 12.09.1960 (Ex.A2),
20.09.1960 (Ex.A3) and 21.12.1964(Ex.A5). Nambi Reddiar executed a
registered Will in favour of his daughter Sankaralakshmi on 06.02.1990.
The plaintiff purchased the suit property from Sankaralakshmi and also
from the legal heirs of Subbiah Konar. The plaintiff has proved his case
and title sufficiently through registered sale documents and also through
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SA(MD)No.675 of 2022
other revenue records. But, the defendants claimed title through the
decree passed in O.S.No.75 of 1952 and consequential sale deed dated
25.07.1975 executed by one Ramasamy Nadar.
12. The suit in O.S.No.75 of 1952 was decreed based on a
compromise memo. A copy of the Decree passed in O.S.No.75 of 1952
was marked as Ex.B3. However, the suit schedule property was not
mentioned in Ex.B3, but, it was mentioned only in the compromise
memo, which was marked as Ex.B4. The second defendant also filed a
suit in O.S.No.518 of 1995 against one Pitchai Konar, for the relief of
declaration and injunction based on the compromise decree and sale deed,
but, the same was dismissed on merits holding that the present suit
property and another property in Survey No.757/2 was not the subject
matter in the present suit.
13. From the above, it clearly shows that the present suit
property was not the subject property in O.S.No.75 of 1952. Further, it is
only a question of fact and the Courts below have concurrently held that
the suit schedule property is not the subject property of O.S.No.75 of
1952.
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SA(MD)No.675 of 2022
14. The said Nambi Reddiar had executed a Will in favour of
his daughter Sankaralakshmi on 06.02.1990. The said Will is a registered
one, which was marked Ex.A25. Further, a certified copy of the Will was
marked and the attestor of the Will was examined as P.W.2. P.W.2, in his
evidence, has clearly stated that the executant Sankaralingam has signed
the Will in the Register Office in his presence and other attestors. But, on
the side of the defendants, excepting a suggestion, no other attempt was
taken to disprove the evidence of P.W.2. Therefore, both the Courts
below have concurrently held that the Will is not in dispute.
15. Further, the defendants are alien to the family of
Sankaralakshmi and they are not entitled to question the Will as they have
no locus standi also. Therefore, the question of proving the Will itself
does not arise. The Will Ex.P25 was also proved through P.W.2, who is
the attestor of the Will.
16. In view of the above, this Court is not inclined to interfere
with the Decree and Judgment passed by the courts below. Consequently,
the substantial questions of law are answered against the appellant.
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SA(MD)No.675 of 2022
17. In the result, the judgment and decree passed by both the
courts below are confirmed. The second appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
02.12.2022
ogy
Index : Yes / No.
Internet: Yes / No.
To
1. The learned Principal Sub Judge,
Tirunelveli.
2. The Principal District Munsif Court,
Tirunelveli.
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SA(MD)No.675 of 2022
B.PUGALENDHI, J.
ogy
SA(MD)No.675 of 2022
02.12.2022
https://www.mhc.tn.gov.in/judis
