Madras High Court
Velu @ Velayudam vs Pounammal on 7 February, 2022
S.A.No 935 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.02.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
S.A. No.935 of 2021
and C.M.P. No.17700 of 2021
Velu @ Velayudam .. Appellant
Versus
Pounammal .. Respondents
Second Appeal filed under Section 100 of Civil Procedure Code, 1908,
to set aside the judgment and decree dated 30.11.2020 passed in A.S. No.44 of
2018, on the file of the Additional Sub Court at Kallakurichi confirming the
judgment and decree dated 30.01.2018 passed in O.S. No.298 of 2014, on the
file of the I Additional District Munsif Court, Kallakurichi and consequently to
dismiss the suit with throughout cost.
For Appellant : Mr. D.Irusappan
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S.A.No 935 of 2021
JUDGMENT
As against the concurrent judgment and decree of the Courts below, the
defendant in the suit in O.S. No.298 of 2014 before the I Additional District
Munsif Court, Kallakurichi, the above Second Appeal is preferred.
2. The respondent as plaintiff filed a suit in O.S. No.298 of 2014 before
the I Additional District Munsif Court, Kallakurichi, for permanent injunction
restraining the appellant herein from interfering with the peaceful possession
and enjoyment of the suit property. It is the case of the plaintiff that the suit
property originally belonged to one Meenatchiammal. It is the specific case of
the plaintiff that the plaintiff is the only legal heir of the said Meenatchiammal
and by virtue of a Will executed by Meenatchiammal on 10.08.1978, the suit
property was bequeathed in favour of plaintiff. When there was correction in
UDR records by introducing the name of one Pichamuthu as pattadhar, it is
stated that the plaintiff came to know that some alienations had taken place and
defendant had created some records to claim title to the suit property. The suit
was contested by the defendant on many grounds.
3. First of all, it was contended by the defendant that out of the total
extent, an extent of 0.13 cent belonged to one Pachamuthu S/o. Muthusamy and
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S.A.No 935 of 2021
another extent of 0.13 cent belonged to one Aadhimoolam. Though the sale
deed in favour of Meenatchiammal is disputed in the written statement and the
Will was described as a document of concoction, the appellant claimed title
under two different sources to sustain his plea on title. Appellant claimed title
to an extent of 13 cents from his grandfather, Athimoolam stating that it is his
ancestral property. He also stated that an extent of 13 cents was orally
purchased from one Pachamuthu. The trial Court, after framing necessary
issues, specifically held that the plaintiff has proved her case. The Will under
Ex.A1 was held to be true by the lower Court. Stating that the defendant /
appellant has not substantiated the case pleaded in the written statement, the
suit was decreed as prayed. Aggrieved by the same, the appellant preferred an
appeal in A.S. No.44 of 2018 before the Additional Sub Court, Kallakurichi.
Even the appellate Court dismissed the appeal confirming the judgment and
decree of the trial Court. Aggrieved by the same, the above Second Appeal is
preferred by the defendant.
4. In paragraph '4' of the written statement, the appellant has pleaded two
different sources. He claimed that an extent of 13 cents belonged to his
grandfather. No document of title or revenue record is produced to prove his
case. In the second part of the same paragraph, the appellant admits that the
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S.A.No 935 of 2021
entire suit property (27 cents) originally belonged to one Mottaya Servai. It is
further stated that after the death of Mottaya Servai, the property was enjoyed
by his son Pachamuthu. It is stated that the appellant's grandfather purchased
the 13 cents orally from Pachamuthu and the remaining extent of 13 cents is
being enjoyned by one Muthusamy son of Pachamuthu. The trial Court and the
lower appellate Court examined the case of plaintiff and defendant with
reference to the documents and concurrently found that the plaintiff has proved
her case of title and possession. It was also found by Courts below that the
appellant did not prove his case of title or enjoyment. The revenue records
stands in the name of plaintiff and Pachamuthu, the father of Periyasamy under
whom the plaintiff purchased the property. The appellant who claim title to 13
cents has not proved title or enjoyment as held by Courts below.
5. This Court is unable to find any merits in any of the substantial
questions of law framed by the plaintiff in the memorandum of grounds. Before
the lower Court, the plaintiff have produced several documents apart from
examining P.W.1 and P.W.2. The defendant / appellant has also filed few
documents which would not support the case of the plaintiff. The Courts below,
based on proper appreciation of evidence and documents apart from pleading,
have come to the conclusion that the plaintiff has established her title. Findings
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S.A.No 935 of 2021
of Court below are supported by pleadings and documents and there is no
ground to interfere with the judgment and decree of the trial Court. The counsel
for appellant is unable to demonstrate a semblance of right in favour of the
appellant.
6. Having regard to the concurrent findings of Courts below, this Court is
unable to sustain any of the substantial questions of law raised in the appeal. In
view of the settled position of law on the scope of Section 100 C.P.C., this
Court is unable to find any reason to interfere with the order of the Courts
below. Accordingly, this Second Appeal is dismissed at the admission stage
itself. No costs. Consequently, connected miscellaneous petition is closed.
07.02.2022
Index:Yes/No
Speaking order / Non speaking order
bkn
To
1. The Additional Sub Court at Kallakurichi.
2. The Additional District Munsif Court, Kallakurichi.
S.S.SUNDAR. J.,
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S.A.No 935 of 2021
bkn
S.A. No. 935 of 2021
07.02.2022
https://www.mhc.tn.gov.in/judis
