Madras High Court
S.Chellaiah ... Defendant / vs Subbammal on 23 February, 2022
S.A.(MD)No.660 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.660 of 2010
and
M.P.(MD)No.1 of 2010
S.Chellaiah ... Defendant / Appellant / Appellant
-Vs-
1.Subbammal
2.Selvachandra Gunavathi
3.Selvamuthaparanam
4.Nagarajakumar
5.Mangaiyarkarasi
6.Annie Jaine ... Plaintiffs / Respondents / Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 19.11.2001 made in A.S.No.4
of 2001 on the file of the II Additional Subordinate Judge, Tirunelveli
confirming the judgment and decree dated 06.09.2000 made in O.S.No.568
of 1993 on the file of the Additional District Munsif Court, Valliyur.
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S.A.(MD)No.660 of 2010
For Appellant : Mr.S.Siva Thilakar
For R2 to R6 : no appearance
JUDGMENT
The defendant in O.S.No.568 of 1993 on the file of the Additional
District Munsif Court, Valliyur is the appellant in this second appeal.
2. The suit was originally filed by one V.S.Chellaiah for recovery of
possession of the suit property from the defendant. The defendant filed
written statement controverting the plaint averments. Based on the
divergent pleadings, the trial court framed the necessary issues. During the
pendency of the suit, the plaintiff passed away and his legal heirs came on
record. As many as three witnesses were examined on the side of the
plaintiffs. Ex.A1 to Ex.A10 were marked. The appellant examined himself
as D.W.1. He did not adduce any documentary evidence. After considering
the evidence on record, the trial court by judgment and decree dated
06.09.2000 directed the defendant to vacate the suit property and surrender
possession. Aggrieved by the same, the defendant filed A.S.No.4 of 2001
before the second Additional Sub Court, Tirunelveli. By the impugned
judgment and decree dated 19.11.2001, the decision of the trial court was
confirmed and the appeal was dismissed. Challenging the same, this
second appeal came to be filed. Though it was filed way back in the year
2010, only notice was ordered and it has not been admitted till date.
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S.A.(MD)No.660 of 2010
3. The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to admit this appeal after framing the substantial question of law and
take it up for disposal later.
4. On the side of the respondents, there is no appearance.
5. I carefully considered the contentions advanced by the learned
counsel appearing for the appellant and went through the evidence on
record.
6. The case of the respondents is that the suit property originally
belonged to one Muthiah. He passed away in the year 1985 leaving behind
his wife Poomani Amaal and his legal heir. Poomani sold the suit property
to the plaintiff vide sale deed dated 03.02.1986. Since the defendant tried
to interfere with the possession and enjoyment of the original plaintiff
V.S.Chelliah, O.S.No.783 of 1986 came to be filed against the present
appellant. The present appellant did not file any written statement leading
to decreeing of the suit. The plaintiff would claim that when he was away,
taking advantage of his temporary absence, the defendant entered the suit
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S.A.(MD)No.660 of 2010
property. That necessitated filing of the present suit for directing the
defendant to surrender possession. The courts below have concurrently
decreed the suit in favour of the plaintiff.
7. The learned counsel appearing for the appellant would raise two
fold contentions.
His first contention is that Ex.A2 was registered at Parasala and that
therefore, the document itself is void.
His second contention is that the suit was not maintainable because
no prayer for declaration was sought.
8. I do not find any force in either of the contentions. It is true that
the document was registered at Kerala. But then, not all such registrations
can be said to be void. It must be specifically established that the vendor
did not have any property at Parasala. In the case on hand, the plaintiff had
not only examined the vendor but also marked Ex.A5 & A6. Ex.A5 is the
notice sent by the Sub Collector, Cheranmahadevi demanding payment of
the deficit stamp duty. Ex.A6 is the receipt for the payment of the deficit
stamp duty.
9. In view of Ex.A5 to Ex.A7, I have to hold that Ex.A2 sale deed is
very much a valid document. If the defendant had adduced any evidence
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S.A.(MD)No.660 of 2010
casting a cloud on the plaintiff's title, then certainly, without a prayer for
declaration, the suit could not have been maintained. But the defendant has
not adduced even a scrap of evidence to show that he has got some claim
over the suit property or that the plaintiff's title is under a serious cloud.
I must also note that the plaintiff had already filed an injunction suit against
the defendant in O.S.No.783 of 1986 on the file of the District Munsif
Court, Ambasamuthram and that the same was also decreed. The certified
copy of the decree was marked as Ex.A1. Therefore, the plaintiff was not
obliged to include a prayer for declaration. His specific contention is that in
defiance of the injunction decree, the defendant had occupied the suit
property and that therefore, he must be directed to surrender possession.
10. In these circumstances, the courts below have concurrently held
in favour of the plaintiff. No substantial question of law arises for
consideration. The second appeal is dismissed. No cost. Consequently,
connected miscellaneous petition is closed.
23.02.2022
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.660 of 2010
G.R.SWAMINATHAN.J.,
rmi
To
1.The II Additional Subordinate Judge, Tirunelveli.
2.The Additional District Munsif Court, Valliyur.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.660 2010
23.02.2022
https://www.mhc.tn.gov.in/judis
