Madras High Court
Rajeshwari vs V.Chinaraj on 28 March, 2022
1 S.A.(MD)No.500 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.500 to 502 of 2010
i) in S.A.(MD)No.500 of 2010
1. Rajeshwari
2. Ravichandar
3. Shanthi ... Appellants / Appellants /
Defendants
Vs.
V.Chinaraj ... Respondent / Respondent /
Plaintiff
Prayer: Second appeal filed under Section 100 of
C.P.C., against the judgment and decree dated 06.07.2009 in
A.S.No.177 of 2005 on the file of the Sub Court,
Ambasamudram, confirming the judgment and decree dated
26.09.2005 in O.S.No.67 of 1996 on the file of the District
Munsif, Cheranmahadevi.
https://www.mhc.tn.gov.in/judis
1/20
2 S.A.(MD)No.500 OF 2010
ii) in S.A.(MD)No.501 of 2010
1. Rajeshwari
2. Ravichandar
3. Shanthi ... Appellants / Appellants /
Defendants
Vs.
1. P.Kanniah (Died) ... Respondent / Respondent /
Plaintiff
2. V.Chinaraj
3. A.Mala
4. Mangannu
5. K.Nalini
(R-3 to R-5 were brought on record as LRs. of
the deceased 1st respondent vide Order
dated 06.12.2019 made in M.P.(MD)Nos.1 to 3 of 2015)
... Respondents
Prayer: Second appeal filed under Section 100 of
C.P.C., against the judgment and decree dated 06.07.2009 in
A.S.No.178 of 2005 on the file of the Sub Court,
Ambasamudram, confirming the judgment and decree dated
26.09.2005 in O.S.No.68 of 1996 on the file of the District
Munsif, Cheranmahadevi.
https://www.mhc.tn.gov.in/judis
2/20
3 S.A.(MD)No.500 OF 2010
iii) in S.A.(MD)No.502 of 2010
1. Rajeshwari
2. Ravichandar
3. Shanthi ... Appellants / Appellants /
Defendants
Vs.
1. Ramaraj (Died)
2. Kankavalli
3. Bhagat Sing
4. Jayalakshmi
5. Jeyasing
6. Rathasing ... Respondents / Respondents /
Plaintiffs
7. Santhana Lakshmi
8. Muthukumar
9. Mutharasan
10.Anitha
(R-7 to R-10 were brought on record as LRs. of
the deceased 1st respondent vide Order
dated 06.12.2019 made in C.M.P.(MD)No.11836 of 2017)
... Respondents
Prayer: Second appeal filed under Section 100 of
C.P.C., against the judgment and decree dated 06.07.2009 in
A.S.No.179 of 2005 on the file of the Sub Court,
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3/20
4 S.A.(MD)No.500 OF 2010
Ambasamudram, confirming the judgment and decree dated
26.09.2005 in O.S.No.77 of 1996 on the file of the District
Munsif, Cheranmahadevi.
For Appellants : Mr. T.S.R. Venkat Ramana
in all second appeals
For Respondents : Mr.M.Kannan
for sole respondent
in S.A.(MD)No.500 of 2010
for R-2
in S.A.(MD)No.501 of 2010
for R-2 to R-6
in S.A.(MD)No.502 of 2010
for R-7 to R-10
in S.A.(MD)No.502 of 2010
***
COMMON JUDGMENT
S.A.(MD)No.500 of 2010 arises out of O.S.No.67 of
1996 on the file of the District Munsif Court, Cheranmadevi.
S.A.(MD)No.501 of 2010 arises out of O.S.No.68 of 1996. S.A.
(MD)No.502 of 2010 arises out of O.S.No.77 of 1996.
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2. All the three suits were tried together and decreed
by a common judgment dated 26.09.2005. The respective first
appeals were also disposed of by a common judgment dated
06.07.2009 by the Sub Court, Ambasamudram. Therefore,
these second appeals are also being disposed of together by a
common judgment.
3. V.Chinraj, S/o.Villumani Nadar is the plaintiff in
O.S.No.67 of 1996. The suit was for declaration and recovery
of possession. The suit property is comprised in
Aavudaiammalpuram, Mukkudal Street, Ambasamudram
Taluk. It is situated to the west of north south road and to the
south of Sivasankaran Nadar property and to the east of
E.Piramuthu Nadar site and to the north of Arunachala Nadar
site. It measures 5½ thachu mulam on east-west and 2¼
thachu mulam on north-south.
4. According to the plaintiff, the plaint schedule
property along with other properties belonged to one
Madamuthu Nadar. Following his demise, his sons
Sivasankara Nadar and Thukkaimuthu Nadar partitioned the
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suit properties between themselves vide partition deed dated
05.07.1920. The plaint schedule property was allotted to
Thukkaimuthu Nadar. Following the death of Thukkaimuthu
Nadar, it devolved on his son Villumani Nadar. Thereafter, it
devolved on the plaintiff. The plaintiff has been in
uninterrupted possession and enjoyment of the property. He
mortgaged the same in favour of one Rukmani Ammal under a
registered deed dated 24.02.1969 and redeemed the same on
04.01.1988. The suit property is adjacent to his house. Since
the first defendant threatened to interfere with the plaintiff's
possession and enjoyment, the plaintiff was constrained to file
the said suit. Following his demise during the pendency of the
suit, his legal heirs were brought on record.
5. Kanniah and Chinraj are the plaintiffs in O.S.No.68
of 1996. The first plaintiff Kanniah is Chinraj's cousin. The
property described as the suit schedule originally belonged to
Madamuthu Nadar and in the partition deed dated 05.07.1920
that took place between the two sons, the suit schedule
property in O.S.No.68 of 1996 was allotted to Sivasankaran
Nadar. Following his demise, his son Subbiah Nadar inherited
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the property. He sold the same to the first plaintiff's paternal
grand father Muthiah Nadar under sale deed dated
11.03.1950 (Ex.A.7). Following the demise of Muthiah Nadar,
it devolved on his son Pooviah Nadar. The first plaintiff is the
son of Pooviah Nadar and in a family arrangement, the suit
property was allotted to him. The first plaintiff permitted his
cousin V.Chinraj to be in possession and enjoyment of the
plaint schedule property along with him. The plaintiffs have
been in uninterrupted joint possession and enjoyment of the
plaint schedule property. Since Shanmuganathan attempted to
interfere with the same, the suit came to be filed for the relief
of declaration and permanent injunction. The suit property is
comprised in Aavudaiammalpuram Street, Mukkudal Village,
Ambasamudram Taluk. It is lying to the west of north-south
road and to the south of Villumani Nadar house site and
compound wall and to the east of Villumani Nadar's Keerai
paathi site and to the north of Subbiah Nadar's site and
measures 4 thachu mulam on east-west and 5 thachu mulam
on north-south.
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6. O.S.No.77 of 1996 was filed by one Subbiah Nadar.
The case of the plaintiff is that the suit property belonged to
one Arunachala Nadar. Following his demise, it devolved on
his sons Subbiya Nadar and Chelliah Nadar. They sold the
property in favour of Subbiah Nadar, S/o.Thakshnamurthy
Nadar vide sale deed dated 03.02.1944. Eversince, Subbiah
Nadar, S/o.Thakshnamurthy Nadar had been in uninterrupted
possession and enjoyment of the plaint schedule property.
During his lifetime, Arunachala Nadar had mortgaged the suit
property in favour of one Ulagammal vide document dated
05.02.1941. The plaintiff also put up a mud wall as a
compound wall. On account of the interference by
Shanmuganathan, suit came to be laid by Subbiah Nadar.
Subbiah Nadar had passed away and his legal heirs came on
record. In the meanwhile superstructure has been raised. The
plaintiffs amended the plaint. The original relief was for
declaration and permanent injunction. It was amended by
seeking the relief of declaration and recovery of possession.
The suit property is situated in Mukkudal Village to the south
of Sankara Nadar Keerai paathi site, to the west of north-south
road, to the north of Pitchiah Nadar Keerai paathi site and to
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the east of Kumaravel Nadar Keerai paathi site. It measures 4
thachu mulam on east-west and 2 thachu mulam on
north-south.
7. O.S.No.67 of 1996 was filed on 21.09.1992.
O.S.No.68 of 1996 was filed on 21.09.1992. O.S.No.77 of 1996
was filed on 12.11.1992. The suits were subsequently
transferred and renumbered. Though the plaintiffs in all the
three suits are different, the defendants in all the three suits
are one and the same. O.S.No.77 of 1996 was originally filed
only against Ravichandar. The defendants filed written
statement in all the three suits controverting the plaint
averments. Their stand was that the property situated in
Aavudaiammalpuram Street, Mukkudal Village to the west of
north-south road and east of Gopalakrishna Nadar house and
to north of east-west street and to the south of Madakannu
Nadar, Subbiah Nadar and Villumani Nadar site belonged to
one T.S.Athimoolam who sold the same for a sum of 500/- on
12.03.1964 to one Shanmugaperumal who in turn sold the
same to Shanmuganathan vide sale deed dated 01.07.1965.
Shanmuganathan was in uninterrupted possession and
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enjoyment of the same ever since. When one Pitchan Nadar
and others questioned his title, he filed O.S.No.406 of 1971
before the District Munsif Court, Ambasamudram. It was
dismissed. Questioning the same, he filed A.S.No.20 of 1973
before the Sub Court, Tirunelveli. Vide judgment and decree
dated 05.12.1973, the decision of the trial Court was set aside
and the matter was remanded. After remand,
Shanmuganathan paid a sum of Rs.700/- to Pitchan Nadar who
accepted the same and conceded Shanmuganathan's title and
possession over the property covered under the sale deed
dated 01.07.1965. Based on the said compromise, the suit filed
by Shanmuganathan was decreed on 29.11.1974.
Shanmuganathan had spent substantial sums of money and
put up a commercial complex in the property purchased by
him. He also raised a plea that the suit schedule property as
contended by the plaintiffs did not exist. He also claimed that
the suit was bad for non-joinder of necessary parties. Based on
the divergent pleadings, the trial Court framed the necessary
issues. On the side of the plaintiffs, three witnesses were
examined. Ex.A.1 to Ex.A.10 were marked. On the side of the
defendants, the third defendant Ravichandar examined
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himself as D.W.1. Ex.B.1 to Ex.B.18 were marked. An Advocate
Commissioner was appointed and his report and plan were
marked as Ex.C.1 and Ex.C.2. After consideration of the
evidence on record, the trial Court by a common judgment
dated 26.09.2005 decreed all the suits as prayed for.
Aggrieved by the same, the defendants filed A.S.No.177 of
2005, A.S.No.178 of 2005 and A.S.No.179 of 2005 before the
Sub Court, Ambasamudram. All the three appeals were
dismissed and the decision of the trial Court was confirmed by
the impugned judgment and decree dated 06.07.2009.
Challenging the same, these second appeals have been filed.
8. Though the second appeals were filed way back in
the year 2010, only notice was ordered and they have not been
admitted till date.
9. The learned counsel appearing for the appellants
reiterated all the contentions set out in memoranda of grounds
and called upon this Court to admit the second appeals and
formulate substantial questions of law and take them up for
disposal later.
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10. Per contra, the the learned counsel appearing for
the respondents / plaintiffs submitted that the impugned
judgment and decree do not call for any interference.
11. I carefully considered the rival contentions and
went through the evidence on record.
12. The learned counsel appearing for the appellants
vehemently contended that the properties covered under the
title documents of the plaintiffs and the suit schedule items
are not one and the same. According to him, the appellants
have put up a commercial complex. The shops are lying on the
land that originally belonged to one Athimoolam who was a
well known political leader. He complained that instead of
correctly identifying the properties covered under their title
deeds, the plaintiffs are targeting the appellants' shops. This
contention urged by the learned counsel appearing for the
appellants cannot be accepted. This is because in O.S.No.77 of
1996, an Advocate Commissioner was appointed and he had
identified the suit schedule properties. The learned counsel
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appearing for the appellants before the trial Court accepted
the said identification. In fact both the Courts below have
strongly referred to the aforesaid stand taken by the
defendants at the time of inspection by the Advocate
Commissioner. Therefore, it is too late in the day to argue that
the properties covered under the plaintiffs' title documents
and the property claimed by the defendants are different.
13. Since the plaintiffs in all the three suits had
sought the relief of declaration, it is entirely their burden to
prove their right and title over the suit properties. The suit
schedule property covered in O.S.No.68 of 1996 is lying on the
northern end. The suit schedule property covered in O.S.
No.67 of 1996 is in the middle. The suit schedule property
covered in O.S.No.77 of 1996 is lying in the south. Ex.A.1 is
the registered sale deed dated 03.02.1944 executed in favour
of Subbiah Nadar by the sons of Arunachala Nadar. The said
Ex.A.1 contains clear four boundary descriptions. The
southern boundary is mentioned as the property belonged to
Pitchan Nadar. The western boundary is mentioned as the
property belonged to E.P.Kumaravel Nadar. The northern
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boundary is mentioned as Keerai paathi belonging to
Sankaran Nadar. Eastern boundary is mentioned as
north-south road. Ex.A.2 is the mortgage deed dated
05.02.1941 executed by Arunachala Nadar in favour of
Ulagammal. Four boundary descriptions set out in Ex.A.1 and
Ex.A.2 tally. Ex.A.3 is the partition deed dated 05.07.1920
entered into between Sivasankaran Nadar and Thukkaimuthu
Nadar. The properties allotted to Sivasankaran Nadar and
Thukkaimuthu Nadar under the said partition deed tally with
the suit schedule descriptions set out in O.S.No.67 of 1996
and O.S.No.68 of 1996. Ex.A.4 is the mortgage deed dated
24.02.1969 executed by Chinraj in favour of Rukmani Ammal.
The four boundary description set out under Ex.A.4 is as
under:-
“to the west of north-south road, to the south of
Subbiah Nadar keerai paathi thottam, to the east of
E.Piramuthu Nadar house site and to the north of Arunachala
Nadar keerai paathi thottam.”
Ex.A.7 is the sale deed dated 11.03.1950 executed by Subbiah
Nadar in favour of Muthiah Nadar. The four boundary
descriptions set out in Ex.A.7 are as under:-
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“ to the west of north-south road, to the south of
Villumani Nadar house site compound wall, to the east of
Villumani Nadar keerai paathi site, to the north of Muthiah
Nadar, S/o.Nallasivam Nadar measuring 4 thachu mulam on
east-west and 5 thachu mulam on north-south. ”
Ex.A.10 is the settlement deed executed by Shanmuganathan
in favour of his wife Rajeswari. The four boundary descriptions
set out in Ex.A.10 are as under:-
“ to the west of north-south main road, to the east of
Gopalakrishna Nadar house wall, to the north of east-west
street, to the south of T.Madakannu Nadar, C.Subbiah Nadar
and Villumani Nadar house compound wall – Vacant site.”
14. The Courts below after a careful perusal of the
four boundary descriptions set out in the title documents of
the plaintiffs, came to the conclusion that the suit schedule
items are adjacent to one another and they have been rightly
identified by the Advocate Commissioner. The only question
that falls for consideration is whether the defendants have
established a better title or not. According to the defendants,
the suit schedule properties originally belonged to
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Athimoolam who sold the same in favour of one
Shanmugaperumal vide Ex.B.2 12.03.1964 and from him,
Shanmuganathan purchased under Ex.B.3 dated 01.07.1965.
But then, Shanmuganathan has not established as to how
Athimoolam had full title over the property sold by him under
Ex.B.2. It is important to note that while the sale deed
executed by Athimoolam is dated 12.03.1964, the plaintiffs
traced the title right up to 1920. The plaintiffs have marked a
host of documents in respect of their claim.
15. As already noted, this is not the first round of
litigation. Shanmuganathan after purchase from
Shanmugaperumal under Ex.B.3, Shanmuganathan asserted
his title over the suit schedule and wanted to put up shops
thereon. He moved the local authority and got planning
approval way back in the year 1971. When he tried to put up
constructions, he faced stiff resistance. Therefore, he filed
O.S.No.406 of 1971 on the file of the District Munsif Court,
Ambasamudram. Pitchan Nadar was shown as the first
defendant. The suit was dismissed. But the first Appellate
Court while setting aside the trial Court's decision did not
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decree the suit as prayed for by Shanmuganathan. It only
chose to remand the matter. After remand, Shanmuganathan
entered into compromise only with Pitchan Nadar and
exonerated the remaining defendants.
16. From a perusal of Ex.A.1 marked by the plaintiffs
in O.S.No.77 of 1996, one can note that Pitchan Nadar's
property is shown as the southern boundary. It was noted that
Shanmunathan entered into a compromise with Pitchan
Nadar. Therefore, the compromise decree obtained in O.S.No.
406 of 1971 (Ex.B.4) cannot give any right or title over the suit
items which are situated to the north of Pitchan Nadar's
properties.
17. From a reading of the Commissioner's report in
the present proceedings, one can note that only during
inspection by the Advocate Commissioner, construction
activity was to be commenced and the shops had not been put
up and that is why, the prayer in O.S.No.77 of 1996 was
amended and the relief of recovery of possession was sought.
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18. The Courts below have concurrently come to the
conclusion that the suit properties have been identified on the
ground and that they are covered by the plaintiffs' title
documents and that the defendants have not shown that their
predecessor-in-title had the right to convey the entire property
covered under Ex.B.2 and Ex.B.3. These are the concurrent
findings. The learned counsel appearing for the appellants
could not demonstrate that the findings are perverse. No
substantial questions of law arises for consideration. The
decision of the Courts below are confirmed. These second
appeals are dismissed. No costs.
28.03.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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To:
1. The Sub Judge,
Ambasamudram.
2. The District Munsif,
Cheranmahadevi.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
PMU
S.A.(MD)Nos.500 to 502 of 2010
28.03.2022
https://www.mhc.tn.gov.in/judis
