Madras High Court

Jamuna Jothi vs Boobathy Ammal on 6 January, 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATE: 06.01.2022

CORAM

THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN

S.A.(MD) No.288 of 2021
and
CMP(MD) No.3978 of 2021

Jamuna Jothi ...Appellant / Appellant / Plaintiff

vs.

1. Boobathy Ammal
2. Panchu
3. Gnanasundari ...Respondents / Respondents /
Defendants

Second Appeal filed under Section 100 of CPC against the

Judgment and Decree dated 10.12.2020 made in A.S. No.01 of 2020

on the file of the Sub Court, Paramakudi confirming the judgment and

decree dated 23.09.2019 made in O.S. No.117 of 2016 on the file of

the District Munsif Court, Paramakudi.

For Appellants : Ms. D.Devi Saravana Priya

For Respondents : Mr.I. Robert Chandrakumar

https://www.mhc.tn.gov.in/judis
2

JUDGMENT

This Second Appeal is directed against the Judgment and Decree

dated 10.12.2020 made in A.S. No.01 of 2020 on the file of the Sub

Court, Paramakudi confirming the judgment and decree dated

23.09.2019 made in O.S. No.117 of 2016 on the file of the District

Munsif Court, Paramakudi.

2. For the sake of convenience, the parties are referred to as, as

described before the trial Court.

3. The case of the plaintiff, in brief, as per the averments made

in the plaint, reads as follows:-

The case of the plaintiff is that the suit property which consists of

totally 50 cents in S.No.250/1 was purchased by Malairajan and his brother

Sethuraman on 12.06.1980 from its original owner Karupanapillai through

the registered sale deed and they were in joint possession and enjoyment

of the same. According to an oral partition 25 cents of land in eastern side

was allotted to Sethuraman and he was in enjoyment of the same and out

of 25 cents of land 21 cents in southern side was sold to one Hema on

https://www.mhc.tn.gov.in/judis

15.05.2000 and a general power of attorney was given to one Janakiraman

by the said Hema and remaining four cents of land was given to one

Govindaraj belonging to Sethuraman vagaiyara by a registered general

power of attorney. The above 25 cents was sold to various persons by

developing it as plots by the two general power of attorney holders and

the eastern portion of the property belonging to sethuraman was sold to

one Shanthi by the registered power of attorney holders and the said

Shanthi in turn had sold the same to one Murugesan on 02.03.2009 by

way of general power of attorney and the said property was enjoyed by

the above said Murugesan. The said Murugesan, on 27.08.2009, sold the

suit property to one Thisaikaran and the suit property was in absolute

possession of the plaintiff by fencing the same. The survey number of the

suit property was changed from S.No.250/1 to Town Survey No.9/1A and

till date, the same was in possession of the said Sethuraman. The

defendants are the legal heirs of the said Sethuraman. The said

Sethuraman sold 25 cents, which was known to the defendants and hence,

the defendants have been estopped by the principles of res judicata and

the defendants on 17.12.2016 tried to encroach into the suit property and

begin to construct super structures in the suit property and hence, the

https://www.mhc.tn.gov.in/judis

plaintiff filed the suit for permanent injunction restraining the defendants

from doing the same.

4. The defendants have filed a written statement by stating that the

averments found in the plaint are false and that the legal heirs of the said

Sethuraman are the defendants and they are the original owners of the

suit property and that the said sethuraman sold 25 cents of land was

false. The suit property and the related properties are in enjoyment of

the said Sethuraman, who is the husband of the first defendant and father

of the defendans 2 and 3 through a sale and out of which, the said

Sethuraman, on 2.7.2008, has created a General Power of Attorney

document to one Shanth,i to an extent of 1200 sqft. The said Sethuraman

died on 20.08.2008 and after six months from the date of death of

Sethuraman, sold an extent of 2144 sq.ft of land to one Murugesan which

consists of the land purchased by the said Shanthi and the land

transferred through the General Power of Attorney by the said Shanthi and

that the said document was not valid one. It is further stated that

Murugesan has sold 2144 sq.ft of land to one Thisaikaran through a

general power of attorney and that the document which was registered

https://www.mhc.tn.gov.in/judis

after the death of the executor is not valid and that the defendants have

resided in the suit property by constructing a tiled house and knowing the

same, the plaintiff told that he resided in the suit property in a tiled house

and that the plaintiff has no right or enjoyment over the suit property and

hence the suit has to be dismissed.

5. The trial Court has formulated the following three issues while

deciding the suit:-

a) Whether the plaintiff is in possession of the suit property?

b) Whether the plaintiff is entitled for permanent injunction as prayed for in the plaint ?

c)Any other relief he is entitled to ?

6. During the trial, on the side of the plaintiff, two witnesses

were examined as PW.1 and PW.2 and eight documents were marked

as Exs.A1 to A8 and Ex.X.1 and Ex.X.2 were marked. On the side of

the defendants one witness was examined as DW.1 and through him

four documents were marked as Ex.B.1 to Ex.B4.

https://www.mhc.tn.gov.in/judis

7. On analysis of the oral and documentary evidence, the trial

Court has partly allowed the suit by dismissing the claim regarding

land measuring an extent 1200 sq.ft on the western side and by

granting permanent injunction restraining the defendants from

interfering with the peaceful possession and enjoyment of the eastern

portion of the suit property. Aggrieved by the same, the plaintiff has

preferred an appeal in A.S. No.01 of 2020 on the file of the Sub Court,

Paramakudi.

8. The first appellate court, upon considering the oral and

documentary evidence of the parties, had dismissed the appeal by

confiming the findings of the trial Court. However, allowing the petition

filed by the plaintiff in I.A. No.60 of 2020 for receiving additional

documents. Aggrieved by the Judgment and decree passed by the first

appellate Court, the present Second Appeal has been filed the plaintiff.

9. The learned learned counsel appearing for the appellant /

plaintiff would submit that the courts below erroneously decreed the

suit partly and dismissed the suit with regard to 1200 Sq.ft without

assigning any valid and acceptable reasons for the same. The courts

https://www.mhc.tn.gov.in/judis

below erred in finding that the plaintiff has not produced any oral or

documentary evidences to prove her possession, particularly, when the

plaintiff stated in her plaint that sub division was effected and for new

survey number the plaintiff obtained separate patta in her name. The

courts below erred in finding that the plaintiff has not proved her

possession but failed to note that the defendants have not produced

any documents to show that they are in possession of the property.

The courts below erred in finding that the plaintiff has failed to prove

that the plaintiff alone is legally entitled for the entire extent of the suit

property is without any basis and the same is liable to be set aside.

The courts below erred in finding that after the execution of power

deed dated 30.08.2008 which was marked as Ex.A8 the principal died

and hence the deeds subsequently executed will not bind the

defendants and hence the plaintiff is entitled only for 762 ¾ Sq.ft is

totally without any basis and the same is liable to be set aside.

10. The learned counsel for the appellant / plaintiff would

furhter submit that the courts below failed to note that after receiving

the sale consideration of the suit property power deed has been

executed and same cannot be declared as invalid after the death of

https://www.mhc.tn.gov.in/judis

principal, since it is a customary practice followed in order to reduce

the registeration fees. Without considering the same the courts below

erroneously dismissed the suit in respect of 1200 Sq.ft. The courts

below failed to consider the citation referred by the plaintiff namely

“M.Karuppannan and two others .vs. Mariyammal and five

others” reported in 2019 (2) CTC Pg 525 which is squarely

applicable to the facts of the plaintiffs case. The courts below erred in

finding that since the defendants have denied the title of the plaintiff

the plaintiff ought to have sought for the relief of declaration along

with the injunction but the plaintiff failed to do so is totally

unwarranted and the same is liable to be set aside. The courts below

failed to consider that the plaintiff have purchased the property for

valuable consideration on 02.03.2009 and the defendants have not

taken any steps to cancel the subsequent deeds after the death of

their father Sethuraman till now. This shows that the defendants

themselves indirectly admitted that plaintiff is in possession of the

property.

11. It is the further contention of the learned counsel for the

appellant/ plaintiff that the courts below failed to note that as per

https://www.mhc.tn.gov.in/judis

Ex.A8 the plaintiff purchased the property and the courts below failed

to consider that partial admission of a deed as an evidence is not

permissible and more particularly when Ex.A8 was taken into

consideration then as per the rule “title follows possession” then there

is no need for plaintiff to seek relief for declaration. The courts below

erred in finding that defendants filed photographs in which thatched

house was put up by the defendants and the defendants proved their

possession and if the plaintiff contents that plaintiff is in possession of

the property then it is the bounden duty of the plaintiff to prove her

possession by way of appointing an advocate commissioner but she

failed to do so is without any basis and the same is liable to be set

aside. The courts below came to a wrong conclusion that the

defendants have proved that while executing power deed in favour of

Shanthi the defendants father namely Sethuraman have not received

any sale consideration from Shanthi and hence the power deed

executed in favour of Shanthi is not a valid one is totally without any

basis. The courts below failed to appreciate that defendants have not

examined any witnesses and not produced any documentary evidences

to prove that Sethuraman has not received the sale consideration

without the same the courts below came to a wrong conclusion that

https://www.mhc.tn.gov.in/judis

defendants proved that Sethuraman has not received any sale

consideration is erroneous and the same is liable to be set aside. The

courts below totally rejected the evidence let out by Shanthi in order

to prove that the plaintiff is in possession of the property since the said

Shanthi has not deposed the actual Four boundaries of suit property

and the plaintiff also failed to made out prima facie case is liable to set

aside. The courts below erroneously rejected Ex.A9 patta in favour of

the plaintiff to prove her possession by stating since the power deed

executed in favour of Shanthi is not a valid one and the plaintiff has

obtained separate patta on the basis of 08.10.2006 sale deed and

hence it cannot be acceptable as evidence is sustainable and the same

is liable to be set aside.

12. The learned counsel appearing for the respondents/

defendants would vehemently oppose the Second Appeal by

contending that the well considered Judgments of the Courts below

need not be interfered with, as there is no question of law involved in

this Second Appeal and prayed for dismissal of the Second Appeal.

https://www.mhc.tn.gov.in/judis

13. This Court paid its anxious consideration to the rival

submissions made and also carefully perused the materials placed on

record.

14. According to the plaintiff, the suit property, which consists of

50 cents in S.No.250/1 was purchased by Malairajan and his brother

Sethuraman on 12.06.1980 from its original owner Karupanapillai,

through the registered sale deed and they were in joint possession and

enjoyment of the same. As per the oral partition, 25 cents of land in

eastern side was allotted to Sethuraman and he was in enjoyment of the

same. Out of 25 cents of land, 21 cents in southern side was sold to one

Hema on 15.05.2000 and a general power of attorney was given to one

Janakiraman by the said Hema and remaining four cents of land was given

to one Govindaraj belonging to Sethuraman vagaiyara, by a registered

general power of attorney. The above 25 cents was sold to various

persons by developing it as plots by the two general power of attorney

holders and the eastern portion of the property belonging to Sethuraman

was sold to one Shanthi, who in turn, sold the same to one Murugesan on

02.03.2009. The said Murugesan, on 27.08.2009, sold the suit property to

https://www.mhc.tn.gov.in/judis

one Thisaikaran and the suit property was in absolute possession of the

plaintiff by fencing the same. The survey number of the suit property was

changed from S.No.250/1 to Town Survey No.9/1A and till date, the same

was in possession of the said Sethuraman. The defendants are the legal

heirs of the said Sethuraman. The said Sethuraman sold 25 cents, which

was known to the defendants and hence, the defendants have been

estopped by the principles of res judicata and the defendants on

17.12.2016 tried to encroach into the suit property and begin to construct

super structures in the suit property.

15. According to the defendants, they are the owners of the suit

property and they denied that the said Sethuraman, sold 25 cents of lands.

The suit property and the related properties are in enjoyment of the said

Sethuraman, who is the husband of the first defendant and father of the

defendans 2 and 3 through a sale and out of which, the said

Sethuraman, on 2.7.2008, has created a General Power of Attorney

document to one Shanthi, to an extent of 1200 sqft. The said Sethuraman