Madras High Court
M.Anbu vs N.S.Jesu Doss on 29 March, 2022
S.A.(MD)No.893 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.893 of 2010
M.Anbu ... Appellant / Respondent / Plaintiff
-Vs-
N.S.Jesu Doss
S/o.Suvakin,
President of the Congregation of the
Brothers of the Sacred Heart of Jesus Society,
(Jusuvin Thiru Irudhaya Sabai)
represented through its
President. ... Respondent / Appellant / Defendant
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 24.03.2010 made in A.S.No.6
of 2010 on the file of the Additional Subordinate Judge, Tirunelveli
reversing the judgment and decree datd 25.11.2009 made in O.S.No.275 of
2008 on the file of the Principal District Munsif, Tirunelveli.
For Appellant : Mrs.N.Krishnaveni
Senior Counsel
for Mr.P.Thiagarajan
For Respondent : Mr.V.Meenakshi Sundaram
for Mr.D.Nallathambi
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S.A.(MD)No.893 of 2010
JUDGMENT
The plaintiff in O.S.No.275 of 2008 on the file of the Principal
District Munsif Court, Tirunelveli is the appellant in this second appeal.
2. The suit was for declaration and permanent injunction. The
respondent herein filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial court framed the
necessary issues. The plaintiff examined himself as P.W.1 and one
Manisekaran was examined as P.W.2. Ex.A1 to Ex.A25 were marked. On
the side of the defendant congregation, D.W.1 was examined. Ex.B1 to
Ex.B6 were marked. After consideration of the evidence on record, the trial
court by judgment and decree dated 25.11.2009 decreed the suit as prayed
for. Aggrieved by the same, the defendant filed A.S.No.6 of 2010 before
the Additional Sub Court, Tirunelveli. By the impugned judgment and
decree dated 24.03.2010, the first appellate court reversed the decision of
the trial court and allowed the appeal and dismissed the suit. Aggrieved by
the same, the second appeal came to be filed. The second appeal was
admitted on 07.12.2010 on the following substantial questions of law:-
“1.Whether the lower appellate court has committed an error in non-
suiting the appellant herein / plaintiff on the ground of non-joinder of parties
without a specific issue having been framed to that effect?
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S.A.(MD)No.893 of 2010
2. Whether the finding of the lower appellate court that the appellant
herein / plaintiff failed to prove either title or possession of the suit property is
perverse?”
3. Heard the learned Senior Counsel appearing for the appellant. The
learned Senior Counsel reiterated all the contentions set out in the
memorandum of grounds and called upon this Court to answer the
substantial questions of law in favour of the appellant and set aside the
impugned judgment and decree and restore the decision of the trial court.
4. Per contra, the learned counsel appearing for the respondent
submitted that the impugned judgment and decree do not call for any
interference.
5. I carefully considered the rival contentions and went through the
evidence on record.
6. As already pointed out, the suit is one for declaration and
permanent injunction. The suit property has been described as comprised in
Survey No.55/1 in Munneerpallam Village and measuring 1 acre and 25
cents on the southern side. A clear four boundary description has also been
given. The plaintiff traces his title to the Will dated 06.09.1984 executed by
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S.A.(MD)No.893 of 2010
his mother Ponnambala Thayammal. Under the said Will, the plaintiff was
given 2 acres and 50 cents in the southern side of Survey No.55/1,
Munneerpallam Village. However, the testatrix Ponnambala Thayammal
had sold 1 acre and 25 cents on the northern half of the southern portion of
Survey No.55/1 in favour of one Hariharasuthan under sale deed- Ex.A23
dated 23.08.2001. Ponnambala Thayammal had purchased the southern
portion measuring 2 ½ acres from the sons of Gnanakkannu Nadar under
sale deed- Ex.A2 dated 04.03.1975. The father of the said vendors had
purchased 2 ½ acres from Ponnammai Nadathi under Ex.A1 dated
02.09.1929. The tracing of title of the appellant on the face of it is
impeccable.
7. I have no doubt whatsoever in my mind that the appellant does
have title over 1 acre and 25 cents of land in Survey No.55/1 in
Munneerpallam Village. The only difficulty is the exact location and
identification of the said 1 acre and 25 cents. When Ponnammai Nadathi
sold 2 ½ acres in favour of Gnanakkannu Nadar under Ex.A1 dated
02.09.1929, what was sold was only undivided share in 5 acres in Survey
No.55/1. But, when the legal heirs of Gnanakkannu Nadar sold 2 ½ acres
in favour of Ponnambala Thayammal under Ex.A2 dated 04.03.1975, the
property sold had definite boundaries. In other words, the southern half of
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S.A.(MD)No.893 of 2010
Survey No.55/1 was sold to Ponnambala Thayammal. There is evidence to
show that Ponnammai Nadathi had sold the other 2 ½ acres in favour of
Nallathambi Nadar. The said Nallathambi Nadar had two sons namely
Kovilpillai Nadar and Deva Iraka Nadar. Kovilpillai Nadar sold 1.25 acres
in favour of his brother Deva Iraka Nadar under Ex.A17 dated 19.03.1952.
A careful perusal of Ex.A17 would show that Kovilpillai Nadar sold only
undivided share in favour of Deva Iraka Nadar. But Deva Iraka Nadar sold
2 ½ acres (1.25 acres inherited from his father Nallathambi Nadar and the
remaining 1.25 acres purchased from his brother Kovilpillai Nadar) in
favour of one Francis Xavier under Ex.A18 dated 08.11.1971 with definite
boundaries. Francis Xavier appears to have purchased the northern half
portion of Survey No.55/1. If the matters had remained thus, there would
not have been any difficulty.
8. What had complicated the issue was sub dividing of Survey No.
55/1 and issuance of separate patta some time in the year 1985. Survey No.
55/1 was sub divided into 55/1A, 55/1B & 55/1C. Ponnambala Thayammal
was given patta for survey No.55/1B. Francis Xavier was given patta only
for 1.25 acres in Survey No.55/1A. The defendant congregation was given
patta for Survey No.55/1C. While Survey No.55/1A and Survey No.55/1C
each measured only 1.25 acres, Survey No.55/1B measured 2 ½ acres. It
appears that Ponnambala Thayammal raised her objections regarding the
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S.A.(MD)No.893 of 2010
sub dividing. But the request appears to have been rejected. It is not
known as to why Ponnambala Thayammal did not file a suit then and there.
Be that as it may, even though as per Ex.A18, Francis Xavier appears to
have purchased 2 ½ acres, it is not known as to why he kept quiet, though
the patta issued in his name was confined only to 1.25 acres on the northern
side. The defendant traces their title under Ex.B2 dated 17.09.1958. One
Konathu Ali Tharaganar had sold 1.25 acres of undivided share in Survey
No.55/1 in favour of the defendant congregation. He in turn purchased the
undivided share of 1.25 acres in the very same survey number from one
Ponnammai Nadathi under Ex.B1 dated 06.05.1946. It is admitted by the
defendant that the executant of Ex.B1 and the executant of Ex.A1 dated
02.09.1929 though having the same name are not different persons. This
adds to further confusion.
9. In my view, even though the plaintiff had convincingly established
his title over 1.25 acres in Survey No.55/1, he ought to have impleaded all
the other stake holders in the undivided Survey No.55/1. In other words,
apart from the defendant congregation, he should have impleaded
Hariharasudhan and Francis Xavier and the purchasers from
Hariharasudhan and Francis Xavier. The defendant could have also prayed
for the relief of demarcation.
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S.A.(MD)No.893 of 2010
10. The first appellate court ought to have remanded the matter,
instead of dismissing the suit in toto. Since the title of the plaintiff over
1.25 acres is so apparent and evident, I set aside the impugned judgment
and decree passed by the first appellate court and remand the matter to the
file of the trial court. The appellant is permitted to file an amendment
petition for impleading the other stake holders and also for adding the relief
of demarcation. The trial court is directed to allow the same. The
defendant is also permitted to file an additional written statement. Since the
suit is of the year 2008, the trial court is directed to conclude the trial itself
on merits and in accordance with law within a period of nine months after
the proposed defendants enter appearance. The parties herein shall appear
before the trial court on 22.04.2022. Registry shall dispatch the records to
the file of the trial court immediately. The second appeal is allowed on
these terms. No cost.
29.03.2022
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.893 of 2010
G.R.SWAMINATHAN.J.,
rmi
To
1.The Additional Subordinate Judge, Tirunelveli.
2.The Principal District Munsif, Tirunelveli.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.893 of 2010
29.03.2022
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