Lakshmiammal (Died) vs Navamani Nadar (Died)
2022 Latest Caselaw 17609 Mad

                                                                                 S.A.No.460 of 2000


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED: 15.11.2022

                                  CORAM: JUSTICE N.SESHASAYEE

                                            S.A.No.460 of 2000


                1.Lakshmiammal (Died)               ...Appellant/Appellant/Plaintiff
                2.D.Murugan
                3.D.Mariappan                       ...LR's of the first appellant

                [Appellants 2 and 3 are impleaded as LR's of the deceased sole
                appellant vide order dated 25.03.2009 made in M.P(MD).No.3 of 2006
                in S.A.No.460 of 2000]
                                                    Vs.


                1.Navamani Nadar (Died)
                2.Kanagarathinam Ammal
                3.Gnana Jecob Moni (Died)          ...Respondents/Respondents/Defendants
                4.N.Gnana Selva Mani
                5.N.Gnana Jeya David                ...LRs of the first respondent
                6.C.Sutha
                7.C.Gnana Kingsly
                8.C.Gnana Stanley                  ...LRs of the third respondent

                [Respondents 2 and 3 who are already on record are recorded as
                LRs of the deceased 1st respondent vide order dated 01.11.2016
                made in M.P(MD).No.4 of 2014 in S.A.No.460 of 2000]

                [Memo presented before the Court on 29.03.2022 is recorded as R3
                died and R2 who is already on record is recorded as LR of the
                deceased R3 vide order dated 29.03.2022 made in S.A.No.460 of
                2000]

                [2nd respondent who is already on record is recorded as LR of the
                deceased 3rd respondent vide order dated 08.11.2022 made in

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                                                                                    S.A.No.460 of 2000


                C.M.P(MD).Nos.7801 and 7804 of 2022 in S.A.No.460 of 2000]

                [Respondents 4 and 5 are brought on record as Lrs of the deceased
                1st respondent vide order dated 17.03.2022 made in M.P(MD).Nos.1
                to 3 of 2014 in S.A.No.460 of 2000]

                [Respondents 6 to 8 are brought on record as Lrs of the deceased
                third respondent vide order dated 08.11.2022 made in
                C.M.P(MD).Nos.7801 and 7804 of 2022 in S.A.No.460 of 2000]

                Prayer : Second Appeal is filed under Section 100 of Code of Civil Procedure,
                against the judgment and decree dated 28.08.1998 by the Subordinate Court,
                Tuticorin in A.S.No.54 of 1992 confirming the judgment and decree dated
                21.01.1992 made in O.S.No.531 of 1989 on the file of the District Munsif
                Court, Tuticorin.
                                     For Appellants        : Mr.M.P.Senthil

                                     For Respondent        : Mr.K.Govindarajan
                                                             for R2
                                                             R1 and R3-Died
                                                             No appearance for R4 to R8

                                                JUDGMENT

The plaintiff who successively lost before the trial Court and also before the

First Appellate Court in her suit for injunction is the appellant herein.

2. The case of the plaintiff is that she had purchased 4.545 acres under Ext.A.1,

sale deed, dated 26.08.1986, Ext.A.2 and Ext.A.3, sale deeds both dated

29.08.1986. She would further state that she had developed a substantial

https://www.mhc.tn.gov.in/judis S.A.No.460 of 2000

portion on the east of the property that she had purchased and left vacant 38

acres or 84 cents to the west of the property which she developed.

Apprehending certain threat to her peaceful possession, she laid the suit.

3. Refuting the plaint allegations, the defendants deny the plaintiff's title to the

suit property and also dispute that she had never enjoyed the same. The

defendants do not know the purchase of 4.545 acres by the plaintiff under

Ext.A.1 to Ext.A.3, sale deeds and she is under the burden to establish the

same. The further allegation of the plaintiff is that she has left certain vacant

portion to the west of the property that she had developed is also denied.

Indeed, the plaintiff does not even know where her property is and it is her son

Mariappan who had purchased and developed the property by misusing his

official position. In survey field No.1405, both the plaintiff and one Subbu

Nadar had properties to the east of the property of the defendants. Indeed, the

defendants have 9.10 acres in Survey field No.1405. This apart, a certain

Chellaiya Konar has 4.545 acres and the aforesaid Subbu Nadar has 3.70 acres.

They are necessary parties to the suit. So far as the properties of the defendants

are concerned, a block of 9.10 acres was jointly purchased vide Ext.B.2, sale

deed dated 05.04.1944 by the first defendant, his father and his sister. The first

defendant's father had released his share in the property to his daughter vide

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Ext.B.3, relinquishment deed dated 24.03.1944. Subsequently, the first

defendant's sister had settled her share in the property in favour of the

defendants 2 and 3 vide Ext.B.4 dated 01.06.1977. Ever since, the defendants

are in continuous enjoyment of the property and are carrying out agricultural

activities. These defendants are not aware of any sub-division of the property

which is said to have been purchased by the plaintiff. If at all it was done, it

was done without any notice to the defendants.

4. The dispute went to trial and before the trial Court, one Murugan, the

plaintiff's son was examined on her behalf. Besides, she also examined two

other witnesses as P.W.2 and P.W.3. For the defendants, the first defendant

entered the box as D.W.1 and he too examined two other witnesses as D.W.2

and D.W.3. The plaintiff has produced Ext.A.1 to Ext.A.8 whereas the

defendants have produced Ext.B1 to Ext.B5. Some of the documents based on

which the parties claimed their respective title to their respective properties

have already been introduced in the narration above. This apart, the trial Court

also appointed an Advocate Commissioner whose report and the plan were

taken on record as Ext.C1 and Ext.C2.

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5. On appreciating the evidence before it, the trial Court chose to dismiss the

suit. Its line of reasoning is that the Commissioner has found that the

defendants have encroached into some 32 cents of the plaintiff's property and

also some 87 cents belonging to some other party. Since the suit is laid for

injunction and since the Commissioner has noted that this portion has been

encroached by the defendants, it declined to grant the relief to the plaintiff.

When the matter reached the first appellate Court, it met with a similar fate.

Hence, this appeal.

6. This appeal was admitted for considering the following substantial question

of law:-

1. Whether on the face of Ex-A-1 to A-5 the title deeds marked and admitted by DW-1 that the title of the plaintiff had been proved against the defendants for Survey No.1405/-

2. Whether in the absence of specific pleading, schedule property is covered under the holdings of the defendants in the face of finding that it is part of Survey No.1405/2 by the Commissioner. The Court below were within their jurisdiction to go against the pleading for holding the findings against the plaintiff?

7. The learned counsel appearing for the appellants submitted that it is not in

dispute that the plaintiff and the defendants are adjacent owners of the

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properties. While the plaintiff has purchased about 4.545 acres under Ext.A1 to

Ext.A3 and the defendants also claim title vide Ext.B2 to Ext.B4, it may be that

there may be others who have got some shares in the survey field. Indeed, the

defendants also admit that the plaintiff has property to the west of their

property. The Advocate Commissioner has identified both the properties

developed by the plaintiff and also the vacant portion which the plaintiff has

left to the west of the property developed by her. However, the Commissioner

has gone a step further and stated that these 32 cents are in possession of the

defendants. The Commissioner indeed cannot make a statement as to the

possession of the property. The Courts below have given an excess weightage

to the Commissioner's report vis-a-vis his statement as to possession of the

property.

8. Per contra, the learned counsel appearing for the respondents argued that the

property of the defendants is an agricultural property wherein they have been

carrying on agricultural activities and therefore, the Commissioner has not

exceeded his authority in making a statement regarding the character of the

property and the nature of possession. He also highlighted the fact that the

plaintiff is uncertain about the property in relation to which she seeks the

relief. In the plaint, she says that the vacant area left by her after developing a

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portion of the property that she had purchased is 38 acres but converts the

same into 84 cents whereas it should be 93 cents. Now, the Commissioner

finds that only 32 cents are available as vacant site. So the plaintiff is

obviously uncertain about the area in relation to which she is seeking

injunction. Indeed, she has not deposed to her knowledge by examining herself

as she examined only her son.

9. After weighing the rival contention, it becomes adequately clear that the

dispute between the parties cannot be resolved with a suit for bare injunction.

A close reading of the pleadings on either side would indicate that both the

plaintiff and the defendants own properties in Survey No.1405 and both claim

title to their properties. The plaintiff claims title to the property in Survey No.

1405/2 whereas the defendants plead that they are not aware of the aforesaid

sub-division. Going by the description of the property, the property of the

defendants lies to the west of the plaintiff's property. Going by Ext.C2,

Commissioner's plan, the plaintiff's property is in Survey No.1405/2 and to the

south of the plaintiff's property, Survey No.1405/7 lies. The property to the

west of Survey Nos.1405/2 and 1405/7 is in Survey No.1405/1. However, the

defendants dispute this revenue sub-division as conclusive since the sub-

division might have taken place without notice to them.

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10. This Court concurs with the submissions of the learned counsel appearing

for the respondents that the plaintiff was not clear about the property in

relation to which she seeks relief in the suit. Whether it is 38 acres or 87 cents

or 32 cents needs to be addressed.

11. Ideally, the plaintiff has to go for a suit for declaration based on her title

deeds along with a suit for demarcation of her boundary from the adjacent

owners. However, if the revenue sub-division of Survey No.1405 is done

correctly and has become final, there may not be any need for seeking

demarcation of boundary since the revenue sub-division boundaries will take

care of the same.

12. After all, there is no dispute between both the parties that both own some

properties in Survey No.1405. It is only in locating the property the dispute has

arisen. The Commissioner report filed in the present case cannot even be a

conclusive piece of evidence, if at all the plaintiff chooses to institute a suit for

declaration of her title.

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13. So far as the present appeal is concerned, this Court does not find any merit

in the same and the same is dismissed. The judgment and decree dated

28.08.1998 made in A.S.No.54 of 1992 on the file of the Subordinate Court,

Tuticorin confirming the judgment and decree dated 21.01.1992 made in

O.S.No.531 of 1989 on the file of the District Munsif Court, Tuticorin, is

hereby confirmed. The plaintiff is at liberty to file a comprehensive suit as

indicated above if they are so desirous. No costs.

15.11.2022 ssb

To

1. Subordinate Court, Tuticorin

2. District Munsif Court, Tuticorin.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court.

https://www.mhc.tn.gov.in/judis S.A.No.460 of 2000

N.SESHASAYEE., J.

ssb

S.A.No.460 of 2000

15.11.2022

https://www.mhc.tn.gov.in/judis