Madras High Court
Varada Gounder vs M.Sambasivam on 30 March, 2022
S.A.No.1047 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Second Appeal No.1047 of 2014
1. Varada Gounder
2. Mani
3. Balasundaram
4. Somasundaram
5. Gokulakrishnan ... Appellants
Vs.
M.Sambasivam ... Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 10.12.2013, made in
A.S.No.13 of 2012, on the file of Sub Court, Cheyar, in reversing the well
considered judgment and decree dated 31.01.2012, made in O.S.No.230 of
2012, on the file of Principal District Munsif Court, Vandavasi,
Tiruvannamalai District.
1/9
https://www.mhc.tn.gov.in/judis
S.A.No.1047 of 2014
For Appellants : Mr.A.Gouthaman
For Respondent : Mr. S.Baskaran
JUDGMENT
The defendants are the appellants in the Second Appeal.
2. The respondent/plaintiff filed a suit seeking for the relief of
permanent injunction restraining the defendants from in any way
interfering with the possession and enjoyment of the property.
3. There were totally four items that formed part of the schedule of
property in the plaint. There is no dispute with regard to items 2 to 4.
Insofar as the first item is concerned, it measures an extent of 45 cents and
there is no dispute with regard to 38 cents. The entire dispute confines
only to the remaining 7 cents in the first item of the suit schedule.
Therefore, this Court has to only see if the findings rendered by the Lower
Appellate Court are perverse insofar as the first item of the suit property is
concerned.
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S.A.No.1047 of 2014
4. The specific case of the plaintiff is that the plaintiff, first
defendant and one Ramasamy are brothers. Defendants 2 to 5 are the
legal representatives of Ramasamy. The further case of the plaintiff is that
he has purchased the suit properties through a Sale Deed dated 26.12.1977
and he is in possession and enjoyment of the property and his name has
also been mutated in the Revenue Records and he was also paying kisth.
The grievance of the plaintiff is that the defendants attempted to interfere
with the possession and enjoyment of the suit properties. Hence the suit
came to be filed seeking for the relief of permanent injunction.
5. The first defendant filed a written statement and with respect to
the first item of the property is concerned, the defendant took a specific
stand that they are entitled for 0.46 cents in Survey No.95/4B and they are
in possession and enjoyment of the same for more than 30 years. That
apart, the defendants have also mutated their name in the Revenue
Records and paying the kisth for the said property. The sum and substance
of the defence taken by the defendants is that the plaintiff is attempting to
misuse the Sale Deed marked as Ex.A1 and take away 7 cents from the
property belonging to the defendants. To that extent, the defendants have
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S.A.No.1047 of 2014
sought for the dismissal of the suit.
6. The Trial Court on appreciation of the oral and documentary
evidence and after considering the facts and circumstances of the case was
pleased to dismiss the suit in entirety on the ground that the defendants
have questioned the right and title of the plaintiff and hence the plaintiff
cannot maintain a suit for bare injunction and should have sought for the
relief of declaration of title. Aggrieved by the same, the plaintiff filed an
Appeal before the Sub Court, Cheyyar, in AS No.13 of 2012. The Lower
Appellate Court on re-appreciation of the oral and documentary evidence
and after considering the findings of the Trial Court was pleased to allow
the Appeal and set aside the judgment and decree of the Trial Court.
Thereby the suit was decreed in favour of the plaintiff. Aggrieved by the
same, the defendants have filed this Second Appeal.
7. Heard Mr.A.Gouthaman, learned counsel appearing for the
appellants and Mr.S.Baskaran, learned counsel appearing for the
respondent. This Court also carefully perused the materials available on
record and the findings of both the Courts below.
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S.A.No.1047 of 2014
8. Insofar as the first item of the suit property is concerned, it was
found that Survey No.95/4 originally consisted of a total extent of 2.95
acres. This property ultimately vested on three persons namely
Muthusamy Gounder, Raji Gounder and Selvaganapathi Gounder and each
of them got 45 cents. The plaintiff and the first defendant are the sons of
Muthusamy Gounder. The plaintiff through Ex.A1 had purchased the first
item of the suit property from Jayarama Gounder and Elumalai Gounder.
In the said Sale Deed, it has been mentioned that in Survey No.95/4, out of
2.95 acres, 0.45 cents was conveyed in favour of the plaintiff. The main
issue that was raised by the defendants is that even though the Sale Deed
mentions the extent as 45 cents, patta has been issued only for an extent of
37.05 cents. Therefore, the defendants have taken a plea that the plaintiff
will be entitled only for 38 cents in the first item of the property and he is
in possession and enjoyment of only this extent.
9. It is seen from the pleadings in the written statement that the
defendants are claiming their right over the property in Survey No.95/4B
measuring an extent of 46 cents. The Lower Appellate Court on going
through Exs.B10 to B14 and Ex.B15, found that there was no reference to
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S.A.No.1047 of 2014
any survey number in these documents. That apart, the Lower Appellate
Court also found that there is absolutely no correlation between the
property that is referred to by the defendant and the property that was
actually purchased by the plaintiff through Ex.A1. The defendants were
making reference to the property in Survey No.95/4B. Whereas the
plaintiff had purchased through Ex.A1, the property in Survey No.95/4
which later on subdivision was assigned new Survey No.95/4A.
Therefore, considering all these documents, the Lower Appellate Court
came to a conclusion that the property that is referred to by the defendant
and the property for which the right is claimed by the plaintiff are
different. On this ground, the Lower Appellate Court reversed the
findings of the Trial Court and granted the relief in favour of the plaintiff.
10. In the considered view of this Court, the defendants have not
traced their right and title for the property in Survey No.95/4B. Whereas
the plaintiff is claiming right over 95/4 (New Survey No.95/4A) through
Ex.A1. The right and title of the plaintiff is borne out through a title
document insofar as the first item of the property is concerned. Therefore,
the onus of proof was on the defendants to have established that the
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S.A.No.1047 of 2014
property to which they are placing their right (Survey No.95/4B) is the
same property which is referred as ‘Item I’, in the suit property. Having
failed to discharge this onus, the Lower Appellate Court rightly rejected
the defence taken by the defendants and decreed the suit in favour of the
plaintiff. This Court does not find any perversity in the findings of the
Lower Appellate Court and it is a factual finding based on the available
oral and documentary evidence. In any case, this Court does not find any
substantial question of law involved in the Second Appeal.
11. In the result, the Second Appeal is dismissed. Considering the
facts and circumstances of the case, there shall be no order as to costs. If
really the defendants want to establish their title over the property in
which they are claiming their right and title, it will be left open to them to
independently institute a suit and seek for an appropriate remedy.
30.03.2022
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
jv
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S.A.No.1047 of 2014
To
1. The Sub Court,
Cheyar.
2. The Principal District Munsif,
Vandavasi,
Tiruvannamalai District.
3. The Section Officer,
VR Section,
High Court Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.1047 of 2014
N. ANAND VENKATESH, J.
jv
Second Appeal No.1047 of 2014
30.03.2022
https://www.mhc.tn.gov.in/judis
