Madras High Court
Perumal Mandiri (Died) vs Kannan (Died) on 31 March, 2022
S.A.No.227 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Second Appeal No.227 of 2015
and MP No.1 of 2015
1. Perumal Mandiri (Died)
2. Parasuraman
3. P.Krishnan
4. L.Maniammal
5. P.Elumalai
6. P.Kannappan
7. S.Mahalakshmi ... Appellants
Appellants 2 to 7 brought on record as LRS of the
deceased 1st appellant viz (Perumal Mandiri) vide
Court order dated 03.03.2022 made in
CMP No.7717 to 7724/2018 in SA No.227/2015 (NAVJ)
Vs.
1. Kannan (Died)
2. Vilvamani
1/14
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
3. Chinnadurai
4. Dhandabani
5. Lalitha
6. K.Sivakumar
7. K.Arul
8. Smt. Uma
9. Smt. Jayamalini ... Respondents
Respondents 5 to 9 brought on record as LRs of the
deceased 1st respondent viz (Kannan) vide Court
order dated 03.03.2022 made in CMP 2212 to
2214 of 2017 in SA No.227 of 2015.
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree to set aside the judgment
and decree passed by the Lower Appellate Court in AS No.18 of 2013
dated 28.08.2014 partly allowing and partly dismissing the decree and
judgment of the Trial Court in O.S.No.202 of 2002 dated 14.12.2012.
For Appellants : Mr.K. Hariharan
For Respondent : Mr. M.Suresh, for RR5 to 9
No appearance for R2 to R4
2/14
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
JUDGMENT
The plaintiff is the appellant in the Second Appeal.
2. The case of the plaintiff is that the suit property situated at Survey
No.345/2, measuring an extent of 1.74 acres was owned by one
Muthusami Mandiri and he sold the property to the plaintiff by virtue of
Exs.A4 and A5. The further case of the plaintiff is that after the purchase
of the property, the name of the plaintiff was also mutated in the Revenue
Records and he was also paying the necessary kisth and receipts were
issued in his name.
3. The grievance of the plaintiff is that the defendants were
attempting to interfere with the possession and enjoyment of the suit
property and were also attempting to create a cloud over the title of the
plaintiff. Hence the suit was filed seeking for the relief of declaration of
title and for consequential permanent injunction.
4. Defendants 1 to 4 did not contest the suit and only the fifth
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
defendant contested the suit. The fifth defendant filed a written statement
and took a stand that the suit property was originally a joint family
property of defendants 1 to 4 and they partitioned all the properties
through a Partition Deed dated 15.11.1974 which was marked as Ex.B1.
The further case of the fifth defendant was that under this Partition Deed,
the suit property was identified as 'D' Schedule and it was allotted in
favour of the first defendant to an extent of 87 cents. It is stated that the
first defendant along with his sons, who are defendants 2 to 4, were in
possession and enjoyment of 87 cents of land after the partition. Out of
the 87 cents, an extent of 58 cents was sold in favour of the fifth defendant
through a registered Sale Deed dated 04.04.2001 marked as Ex.B2. Thus,
the fifth defendant took a categoric stand that the plaintiff is not entitled
for title over 1.74 acres of land and hence sought for the dismissal of the
suit.
5. The Trial Court after considering the facts and circumstances of
the case and on appreciation of the oral and documentary evidence, came
to a categorical conclusion that the plaintiff has made out a case and hence
decreed the suit as prayed for through judgment and decree dated
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
14.12.2012. Aggrieved by the same, the fifth defendant filed an Appeal
before the Sub Court, Arani in AS No.18 of 2013. The Lower Appellate
Court on re-appreciation of the oral and documentary evidence and on
considering the finding of the Trial Court, was pleased to allow the Appeal
through judgment and decree dated 28.08.2014 and thereby the judgment
and decree of the Trial Court was set aside and consequently the suit was
dismissed. Aggrieved by the same, the plaintiff has filed this Second
Appeal.
6. When the Second Appeal was admitted, this Court framed the
following substantial questions of law:
i) When the plaintiff's vendor and the vendor's
father derive title from the government by
assignment and grant and patta proceedings, can
the Civil Court go into the question of title of the
plaintiff's side, in the absence of any alienation by
the plaintiff and his vendor?
ii) Is the title and grant given by the
Government by issuing assignment order and patta
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
to the plaintiff's vendor, is grant not complete title in
the hands of the plaintiff's side and is it justifiable
by the Civil Court to find any title outside the grant
in third parties, in the absence of the government
being a party? and
iii) Can the Lower Appellate Court reject and
refuse to consider the entire Exs.A1 to A.14, proving
the plaintiff's side title, possession and enjoyment,
and refuse to grant the relief of injunction even in
part, when the defendants' side had not produced
any documents to prove their possession and
enjoyment?
7. Heard Mr.K.Hariharan, learned counsel appearing for the
appellants and Mr.M.Suresh, learned counsel appearing for respondents 5
to 9. This Court also carefully perused the materials available on record
and the findings of both the Courts below.
8. There is no dispute with regard to the fact that the suit property
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
was originally a Poramboke land and the Government through an
assignment patta marked as Ex.A1, assigned the property in favour of
Thanja Mandiri. The said Thanja Mandiri had two sons namely
Govindasami Mandiri and Muthusami Mandiri. After the demise of
Thanja Mandiri, his sons through Ex.A3 divided the properties among
each other and the suit property was allotted in favour of Muthusami
Mandiri. This Court went through the original document and found that
the suit property has in fact been allotted in favour of Muthusami Mandiri
through Ex.A3. The said Muthusami Mandiri sold the suit property to the
plaintiff through Exs.A4 and A5. Thus the plaintiff is claiming right and
title over the suit property through Exs.A1, A3, A4 and A5. Insofar as the
possession and enjoyment of the property is concerned, the plaintiff relied
upon Exs.A2, A6 to A14.
9. One Muthusami Mandiri was a common ancestor, who had two
sons namely Thanja Mandiri and Chinnappa Mandiri. The said Chinnappa
Mandiri had certain properties allotted in his favour as joint family
properties. This Chinnappa Mandiri had five sons. They among
themselves entered into a partition through Partition Deed dated
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
15.11.1974 which was marked as Ex.B1. According to the fifth defendant,
one of the sons namely Govinda Mandiri was allotted 87 cents under this
Partition Deed in the suit property. Out of the said 87 cents, 58 cents was
sold by Govinda Mandiri in favour of the fifth defendant through Ex.B2.
The said Govinda Mandiri, died during the pendency of the suit. His sons,
who are Defendants 2 to 4, did not contest the case.
10. The main issue that arises for consideration is as to how the sons
of Chinnappa Mandiri made a claim over a land that was assigned in
favour of Thanja Mandiri. That apart, in the Partition Deed executed under
Ex.B1, neither Govindasamy Mandiri, nor Muthusami Mandiri were
parties and hence how will the property in Survey No.345/2, that was
added in this Partition Deed, bind the legal heirs of Thanja Mandiri, will
be the moot question.
11. The Trial Court after analysing the oral and documentary
evidence categorically found that the suit property was allotted in favour
of Muthusami Mandiri, under Ex.A3 and he had conveyed the title in
favour of the plaintiff. The Trial Court also found that defendants 1 to 4
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
conveniently remained ex-parte and did not come before the Court to
prove as to how they became entitled for the suit property. Therefore,
adverse inference was drawn against defendants 1 to 4. The Trial Court
also took into consideration the fact that if really 87 cents was given to the
first defendant and he had conveyed through Ex.B2 an extent of 58 cents
in favour of the fifth defendant, there was not even a mention about the
balance lands which would have formed part of the boundary in the Sale
Deed.
12. The Trial Court also took into consideration the evidence of
Muthusami Mandiri, who was the vendor of the plaintiff and was
examined as P.W.2. He categorically stated in his evidence as to how he is
entitled for the suit property and how it was conveyed in favour of the
plaintiff. On the side of the defendant, the fifth defendant and one Babu,
were examined as witnesses. According to the fifth defendant, an extent
of 58 cents was purchased in the suit property through a Sale Deed dated
04.04.2001. However, there was not a single document that was available
to show that he had taken possession of the property or that there were any
entries found in the Revenue Regards to show that it stood at least in the
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
name of his vendor Govinda Mandiri. The Trial Court on appreciation of
the evidence on the side of the defendant came to a categorical conclusion
that there was absolutely no evidence to show that Govinda Mandiri,
owned 87 cents in the suit property. In view of the same, the Trial Court
came to a categorical conclusion that the plaintiff is entitled for the relief
sought for in the suit.
13. The Lower Appellate Court had decided the Appeal more on the
ground of probabilities than by looking into the actual evidence that is
available on record. The Appellate Court comes to a categorical
conclusion at page No.14 of the judgment that Item No.6 in the ‘B’
Schedule Property as found in Ex.A3 was allotted in favour of Muthusami
Mandiri and it was found to have an extent of 1.74 acres. After having
held so, the Lower Appellate Court starts comparing Exs.B1 and A3 and
rendered findings on probabilities. According to the Lower Appellate
Court, under Ex.A3 it has been mentioned that Muthusami Mandiri, has
only half share out of 1.74 acres and therefore, he is entitled only for 87
cents. Therefore, according to the Appellate Court, the plaintiff cannot
claim a title over 1.74 acres and at the best he can only claim for an extent
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
of 87 cents. This finding of the Appellate Court is totally perverse and it
is against the specific recitals found in Ex.A3. The Appellate Court has
not properly appreciated the findings of the Trial Court and it has been
reversed on mere assumptions and misreading of Ex.A3.
14. The admitted case is that the assignment was made only in
favour of Thanja Mandiri and it is also admitted that Muthusami Mandiri
is one of the son of Thanja Mandiri. That is the reason why when there
was partition between the sons of Thanja Mandiri, the suit property was
allotted in favour of Muthusami Mandiri under Ex.A3. There was
absolutely no right for the branch belonging to Chinnappa Mandiri, over
the suit property, since the assignment had been made specifically in
favour of Thanja Mandiri. This crucial fact has not been taken note of by
the Lower Appellate Court. Hence the title to the suit property can pass on
only through the branch of Thanja Mandiri to whom the assignment was
specifically made by the Government. Consequently, the plaintiff who
traced the title through the branch of Thanja Mandiri will be entitled to
claim title over the suit property and it is substantiated through Ex.A3.
The first and second substantial questions of law are answered accordingly
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
in favour of the appellant.
15. The Lower Appellate Court did not even take into consideration
the fact that there was not a single document available on the side of the
defendants to show that they have been in possession of the suit property
at any point of time if really they had the title for the same. On the other
hand, the plaintiff had filed Ex.A2, Exs.A6 to A14 to substantiate the
possession over the property and the mutation that had been taken place in
the Revenue Records. Since the title has been found in favour of the
plaintiff, considering the nature of the property, the possession will also
follow. The third substantial question of law is answered accordingly in
favour of the appellant.
16. In view of the above discussion, this Court has no hesitation to
interfere with the Judgment and decree of the Lower Appellate Court since
this Court finds that the findings rendered by the Lower Appellate Court is
perverse. Accordingly, the judgment and decree made in AS No.18 of
2013 dated 28.08.2014 is hereby set aside. The judgment and decree of the
Trial Court is restored and consequently the suit is decreed as prayed for.
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
17. In the result, the Second Appeal is allowed. Considering the
facts and circumstances of the case, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
31.03.2022
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
jv
To
1. The Subordinate Judge,
Arni, Tiruvannamalai District.
2. The District Munsif,
Polur, Tiruvannamalai District.
3. The Section Officer,
VR Section,
High Court Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.227 of 2015
N. ANAND VENKATESH, J.
jv
Second Appeal No.227 of 2015
and MP No.1 of 2015
31.03.2022
https://www.mhc.tn.gov.in/judis
