Madras High Court
K.V.P.M.Jafarullah vs M.S.Khadar Moideen Raja on 30 March, 2022
S.A(MD)No.218 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:30.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
S.A(MD)No.218 of 2022
and
C.M.P(MD)No.2595 of 2022
K.V.P.M.Jafarullah ... Appellant/Appellant/1st
Defendant
Vs.
1.M.S.Khadar Moideen Raja
2.M.S.Syed Abbas ... Respondents 1&2/
Respondents1&2/Plaintiffs
3.Nijam ... Respondent No.3/Respondent
No.3/2nd Defendant
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside
the judgment and decree dated 23.02.2021 passed in A.S.No.7 of 2015 on
the file of the Principal Subordinate Judge, Pudukkottai, confirming the
judgment and decree dated 03.11.2014 passed in O.S.No.103 of 2007 on
the file of the District Munsif cum Judicial Magistrate, Thirumayam.
1/9
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S.A(MD)No.218 of 2022
For Petitioner : Mr.M.Mohamed Jafarullah
JUDGMENT
This second appeal is filed challenging the judgment and decree
dated 23.02.2021 passed in A.S.No.7 of 2015 on the file of the Principal
Subordinate Judge, Pudukkottai, confirming the judgment and decree
dated 03.11.2014 passed in O.S.No.103 of 2007 on the file of the District
Munsif cum Judicial Magistrate, Thirumayam.
2.The appellant is the first defendant in the suit and the second
defendant in the suit remained exparte.
3.The respondents/plaintiffs instituted a suit for perpetual
injunction. The plaintiffs' state that their father Mr.A.K.Mohammed
Sulthan Rowther was the absolute owner of the suit properties as
described in the suit schedule mentioned. He purchased the properties by
way of 3 separate sale deeds respectively, dated 10.02.1964, 10.02.1964
and 04.09.1968 for valid consideration. The original sale deeds were
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S.A(MD)No.218 of 2022
filed as documents 1 to 3. The first defendant's father K.V.P.Mohammed
Ibrahim executed a sale deed dated 04.09.1968 in respect of southern
most portion of the suit property and other sale deeds were executed by
one Mohammed Abdul Khaddar Rowther and his son Mohammed Yousuf
in respect of middle and northern portions of the suit property. The
plaintiffs' father was in possession and enjoyment of the suit property as
a single plot and he constructed a cattle shed, dug a manure pit and stored
hay ricks in the suit property. The plaintiffs' father died on 03.04.2006
leaving behind his wife Suleka Beevi, two daughters and three sons
including the plaintiffs as legal heirs.
4.The plaintiffs' father was in possession and enjoyment of the suit
property, till his death. The plaintiffs their brother, mother and sister
succeeded to his estate and they are in joint possession and enjoyment of
the suit scheduled properties. Since the plaintiffs' elder brother and
sisters are residing at a far of place, the plaintiffs are looking after the
suit properties. The defendant had approached the plaintiffs' father in the
year 2002 with others to purchase the suit property of the second
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S.A(MD)No.218 of 2022
defendant, which was not accepted by the father of the plaintiffs. The
defendant issued a lawyer notice in the name of the first defendant's
mother to the plaintiff, the plaintiffs' father containing false allegations
and that was replied suitably. The plaintiffs refused to sell the property
to the second defendant. Under those circumstances, the defendant
started troubling the plaintiffs by stating that the suit property is a
Natham Poramboke. Hence, the plaintiffs were constrained to file the suit
for permanent injunction.
5.The first defendant filed a written statement, as the second
defendant remained exparte. The first defendant denied all the averments
in the plaint. All the issues regarding the ownership of the suit property
and other details are also denied. The first defendant states that the
plaintiff and his brother, sister and mother never got any right in the suit
property, on account of their father's death. The defendants are not
interfering with the possession and enjoyment in the suit property. The
suit was filed suppressing the material facts. The suit property belonged
to Government Natham Poramboke. The defendant's father
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S.A(MD)No.218 of 2022
K.V.P.Muhamed Ibrahim used to pay penalty to the Government in
respect of the suit property under 'B' memo. Therefore, the suit is to be
rejected.
6.The trial Court formulated four issues. The trial Court considered
the original registered sale deed Ex.A1, Ex.A2 and Ex.A3. Ex.A.8 is the
report submitted by the Tahsildar, Thirumayam to the Revenue Divisional
Officer. Ex.A.8 reveals that she could not find any superstructure as
indicated in Ex.B.3 and Ex.B.4. Thus, the trial Court formed an opinion
that if at all there is a super structure as per the contentions of the first
defendant in the suit property, as evidenced by Ex.B.3 and Ex.B.4, the
Tahsildar could have observed the same in his report, which was marked
as Ex.A.8. However, the Tahsildar could not find any superstructure in
the suit property. The report of the Tahsildar is a clear evidence to
establish that the plaintiffs are in possession of the suit scheduled
property. As far as Ex.A1 to Ex.A.3 are concerned, the original sale deeds
established that the father of the plaintiffs had purchased the suit
scheduled property during the year 1964 to 1968.
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S.A(MD)No.218 of 2022
7.Considering all these documents and mainly based on the report
of the Tahsildar, Thirumayam, marked as Ex.A.8, the trial Court formed
an opinion that the plaintiffs have established their right of possession,
based on the original sale deed and based on the report of the Tahsildar
Ex.A.8. Accordingly, the suit was decreed in favour of the plaintiffs. The
first defendant filed an appeal suit in A.S.No.7 of 2015. The first
appellate Court had also independently gone into the issues formulated
points and the grounds raised between the parties were also considered.
The first appellate Court has also elaborately considered Ex.A.1 to Ex.A.
3 sale deeds registered in favour of the father of the plaintiffs. Ex.A.8,
report of the Tahsildar, Thirumayam to RDO, Pudukottai was also
elaborately considered by the first appellate Court.
8.Over all reading of Ex.A.1 to Ex.A.3 and Ex.A.8, the first
appellate Court formed an opinion that the plaintiffs purchased an extent
of 6.05 cents in Ex.A.1, and 1.55 cent in Ex.A2 and 7.24 cents in Ex.A.3.
As per Ex.A.8- Tahsildar Report, the plaintiffs purchased 7.57 cents but
he have ½ cent in the plot which he claims right in Ex.A.3. Therefore, the
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S.A(MD)No.218 of 2022
plaintiffs totally have approximately 8 cents of land in their hand, which
is 0.03 ares. Even in the Tahsildar's Report, it is not found that the suit
scheduled property is classified as Natham Poramboke. The first
defendant also filed revenue records to establish that the suit scheduled
property is classified as Natham Poramboke. In the absence of any
revenue records to establish the same, the Court cannot form an opinion
that the suit property is classified as Natham Poramboke in the Revenue
records, more specifically when the Tahsildar submitted a report in Ex.A.
8, wherein there is no mentioning about the classification of land as
Natham poramboke and there is no reason to believe the statement made
by the first defendant in this regard.
9.This being the facts and circumstances, this Court do not find
any any infirmity or perversity in respect of the concurrent findings of
the trial Court as well as the first appellate Court. Accordingly, the
judgment and decree dated 23.02.2021 passed in A.S.No.7 of 2015 on the
file of the Principal Subordinate Judge, Pudukkottai confirming the
judgment and decree dated 03.11.2014 passed in A.S.No.103 of 2007 on
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S.A(MD)No.218 of 2022
the file of the Chief Judicial Magistrate, Thirumayam are confirmed and
consequently, the second appeal stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
30.03.2022
Index:Yes/No
Internet:Yes/No
Ns
To
1. The Principal Subordinate Judge,
Pudukkottai.
2.The District Munsif cum Judicial Magistrate,
Thirumayam.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.218 of 2022
S.M.SUBRAMANIAM,J.
Ns
S.A(MD)No.218 of 2022
and
C.M.P(MD)No.2595 of 2022
30.03.2022
https://www.mhc.tn.gov.in/judis
