Madras High Court
K.Sundaramoorthy vs K.Arumugam on 7 June, 2022
S.A.(MD) No.363 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.06.2022
CORAM
THE HONOURABLE MR.JUSTICE N.SESHASAYEE
S.A.(MD) No.363 of 2010
and
M.P.(MD) Nos.1 of 2010 & 1 of 2012
K.Sundaramoorthy ... Appellant/Respondent/
Defendant
-vs-
K.Arumugam ... Respondent/Appellant/
Plaintiff
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 05.03.2010 made in A.S.No.93 of 2008 on
the file of Principal Subordinate Court, Kumbakonam reversing the
judgment and decree dated 01.04.2008 made in O.S.No.169 of 2001 on the
file of Principal District Munsif Court, Kumbakonam.
For Appellant : Mr.Madhavan
For Respondent : Mr.B.Jameel Arasu
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S.A.(MD) No.363 of 2010
JUDGMENT
The defendant in O.S.No.169 of 2001 on the file of the Principal District
Munsif Court, Kumbakonam, is the appellant herein. The suit is laid for
bare injunction that the plaintiff, who is in possession of the suit property,
should not be disturbed. The trial court dismissed the suit whereas the first
appellate court had allowed the suit in an appeal preferred in A.S.No.93 of
2008. Hence, this second appeal.
2. This appeal has not yet been admitted and notice was ordered to the
respondent. In deed, the respondent/plaintiff had entered appearance, but
during the pendency of this appeal, the respondent had passed away and his
legal representatives were brought on record. They, however, have chosen
not to contest this appeal.
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S.A.(MD) No.363 of 2010
3. A brief statement of facts may now be provided:
(a) According to the plaintiff, a block of agricultural land, measuring
an extent of 1.23 acres in Survey No.12/4, came to be divided
between a certain Kalimuthu and his five sons, vide Ex.A1, partition
deed dated 06.01.1980;
(b) The plaintiff is one of the sons of Kalimuthu and the defendant is
another son. In the partition, the plaintiff was allotted two plots, one
measuring 17.3 cents and another measuring 18 cents. According to
the plaintiff, the defendant was keen to purchase the plots allotted to
the plaintiff in the partition, but since the plaintiff showed reluctance
for parting with his plots, the defendant was attempting to force his
way over the suit property. Hence, the suit for bare injunction.
4. The defendant has filed his written statement, whose entire narration may
not be relevant. According to him, the property measuring 1.23 acres in
S.No.12/4 is the self acquired property of late Kalimuthu, father of the
parties herein. He adds that the defendant has not joined Ex.A1 partition.
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S.A.(MD) No.363 of 2010
He further asserts that on 10.01.1981, Kalimuthu had executed a registered
will in his favour and pleads that on 13.08.1987, he entered into a sale
agreement with the plaintiff for purchasing the plots of the plaintiff and
indeed, he had even paid the sale consideration to the plaintiff entirely. On
the basis of the said sale agreement, the defendant was put in possession of
the property and that the plaintiff is not in lawful possession to sustain the
cause of action.
5. The dispute went to trial, and before the trial court the plaintiff examined
himself as P.W.1 and also examined a certain Durai as P.W.2. He had
produced five documents of which, Ex.A1 is the partition deed referred to in
the pleadings. Ex.A4 is a copy of the Adangal, which however is signed
only by the Village Administrative Officer. Though it is not a document that
can be admitted in evidence as it was not authenticated by the Tahsildar, still
it is a document which the plaintiff himself relies on. For the defendant, he
had examined himself as D.W.1 and examined the officials of Revenue and
Survey Department as D.W.2 to D.W.5. The defendant had produced as
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S.A.(MD) No.363 of 2010
many as 18 documents, and most of which are kist receipts etc. Through the
officials witnesses, Ex.X-1 to Ex.X-10 have come to be marked of which,
Ex.X-3 is village 'A' extract. After placing the evidence before it, the trial
court has chosen to rely on Ex.B1, sale agreement and has entered a finding
that the plaintiff is not in possession, as he has parted with the possession
pursuant to Ex.B-1.
6. Aggrieved by the same, the plaintiff preferred a first appeal in A.S.No.93
of 2008 before the Principal Sub Court, Kumbakonam. The first appellate
court has found that possession has not passed over to the defendant and
that Ex.B-1, and the various other documents which the defendant has
produced do not relate to the suit property, and chose to decree the suit.
7. Heard Mr.Madhavan, learned counsel for the appellant. The learned
counsel essentially concentrated in establishing a case of no partition under
Ex.A-1, since the defendant was not a party to the said partition. He also
laid emphasis on Ex.X-3, an extract of village 'A' register. The learned
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S.A.(MD) No.363 of 2010
counsel argued that as per Ex.X-3, the property over which the plaintiff
claims title is now comprised in S.Nos.12/4D and 12/4F and that which is in
possession and enjoyment of the defendant is in S.No.12/4E. He also
referred to Ex.B-1 sale agreement, and argued that the first appellate court
has erred in ignoring the consequences of various tax receipts, which can be
associated with Ex.B1.
8.1 After evaluating the submissions of the learned counsel in the context of
the pleadings in the suit and the documents produced on either side, this
Court finds:
(a) Notwithstanding the fact that the defendant might not have signed
Ex.A1, partition deed, the partition has to be accepted as a fact since
some seven years after Ex.A1 partition, the defendant himself has
entered into a sale agreement with the plaintiff under Ex.B1, dated
13.08.1987;
(b) Ext.B1 deals with two specific plots of 20 cents and an 18 cents.
This implies that the total extent dealt with under the sale agreement
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S.A.(MD) No.363 of 2010
is about 38 cents whereas, according to the plaintiff in terms of the
partition deed, he is entitled to 35.3 cents. After all, the property is an
agricultural property and some concession might have to be given in
stating the extent. The fact of the matter is that the partition indeed
had happened, and the defendant knew that it had happened, and that
he had acted on it which now stands fortified by Ex.B1.
8.2. But the larger issue is, whether the plaintiff is in possession of the
property. Here, the plaintiff has not helped himself in describing the suit
property, as he had merely stated the survey number as S.No.12/4 without
any subsequent revenue sub divisions. Having said that, there is a
convergence in consensus as between either side, and that both the plaintiff
and the defendant rely on certain documents that were produced on their
respective sides during the trial that the property allotted to the plaintiff has
a definite survey sub-division. So far as the plaintiff is concerned, he has
produced Ex.A4, which shows that the property allotted to him is comprised
in S.Nos.12/4D and 12/4F. This exactly is a statement which the Sub
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S.A.(MD) No.363 of 2010
Inspector of Survey, who was examined as D.W.5, has said through Ex.X-3
document. Even though there is a possibility to construe that the
description of the property in the plaint may not satisfy the requirements of
Order VII Rule 3 CPC, given the scenario where both the plaintiff and the
defendant appear to concede that the plots covered under S.Nos.12/4D and
12/4F belong to the plaintiff, this Court chooses to ignore the insufficiency
of particulars in the description of property in the plaint.
8.3 But still, who is in possession of the property? For supporting
possession, the defendant relies entirely on Ex.B-1. But on a careful
reading of Ex.B1, this Court does not find any transfer of physical
possession of property by the plaintiff to the defendant. This implies that
the defendant could not interfere with the plaintiff's possession.
9. In conclusion, this Court does not find any merit in the appeal, but only
seeks to add some clarity to the decree passed by the first appellate court
and that it would be confined to the plots covered under S.Nos.12/4D and
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S.A.(MD) No.363 of 2010
12/4F. As to the rest, the judgment of the first appellate court stands
confirmed. The second appeal is dismissed. No costs. Consequently,
connected miscellaneous petitions are closed.
07.06.2022
Internet:Yes
Index:Yes/No
abr
To
1.The Principal Subordinate Court,
Kumbakonam.
2.The Principal District Munsif Court,
Kumbakonam.
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S.A.(MD) No.363 of 2010
N.SESHASAYEE, J.
abr
S.A.(MD) No.363 of 2010
07.06.2022
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