R.Kanagaraj vs Subbammal
2022 Latest Caselaw 16089 Mad

                                                                      S.A Nos.954 and 955 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 11.10.2022

                                                    CORAM:

                                   THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI

                                            S.A.Nos.954 and 955 of 2016

                     R.Kanagaraj
                                               ...(Appellant in S.A No.954 and 955 of 2016)


                                                   Vs
                     1.Subbammal
                     2.Vijaya
                     3.Muthammal
                     4.R.Ramasamy
                     5.Arumugam
                     6.Sundari
                     7.Ponraj
                     8.Deepamalar
                                                         ...Respondents in S.A No.954 of 2016

1.R.Ramasamy

2.Arumugam

3.Sundari

4.Ponraj

5.Deepamalar

6.Subbammal

7.Vijaya

8.Muthammal ...Respondents in S.A No.955 of 2016

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

PRAYER IN S.A NO.954 OF 2016: This Second appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and decree passed in A.S No.14 of 2014 dated 08.09.2016 on the file of Sub Court, Sathyamangalam reversing the Judgment and decree passed in O.S No. 289 of 2009 dated 20.01.2014 on the file of District Munsif Court, Santyamangalam.

PRAYER IN S.A NO.955 OF 2016: This Second appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and decree passed in cross appeal No.1 of 2015 dated 08.09.2016 on the file of Sub Court, Sathyamangalam confirming the Judgment and decree passed in O.S No. 289 of 2009 dated 20.01.2014 on the file of District Munsif Court, Santyamangalam.

                                     For Appellants : Mr.V.Sivakumar
                                (in both the appeals)
                                    For R1 to R3      : Ms.Chitra Sampath (for Mr.M.Roshan Afiq)
                            (in S.A No. 954 of 2016)

                                     For R4 to R8     : Dispensed with
                             (in S.A No.954 of 2016)
                                     For R1 to R5
                           (in S.A No.955 of 2016) : Dispensed with
                                     For R6 to R8    : Ms.Chitra Sampath (for Mr.M.Roshan Afiq)
                            (in S.A No.955 of 2016)






https://www.mhc.tn.gov.in/judis
                                                                                S.A Nos.954 and 955 of 2016

                                                      COMMON JUDGMENT

The appellant in both the appeals is the plaintiff in suit O.S No.289 of

2009 on the file of the District Munsif Court, Sathyamangalam, for the

relief of declaration and injunction with regard to suit property with an

extent of 29 cents in S. No.540/3 at Panayampalli village, Sathe taluk, filed

against the defendant, by contending that the suit property absolutely

belongs to him and his vendor, in which, the defendants have no right but

they caused interference hence the suit. The defendant contested the suit and

submitted that the plaintiff and his vendors are not entitled to 29 cents in

Survey No.540/3 and the plaintiff and his vendor are entitled for 6 cents,

and by creating the forged documents with an intention to grab the

property, which belongs to the defendant, thereby the defendant totally

denied the plaintiff's rights and enjoyment of the property.

2. On considering the evidence and documents adduced by both

pliantiff and the defendants, the Trial Court framed five issues and

concluded the plaintiff is not entitled for 29 cents as he claimed in the suit.

Accordingly the relief of declaration was not granted, but, considering the

admission made by the defendants that the plaintiff is now in possession of

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

the suit property, the trial Court arrived at a conclusion that the plaintiffs are

in possession of the property and until eviction, the plaintiff should not be

disturbed by the defendants, thereby granted permanent injunction with

limited period.

3. Aggrieved over the same, the Defendants 6 to 8, preferred an

appeal in A.s No.14 of 2014, on the file of Sub Court, Sathyamangalam,

and the plaintiff filed a cross appeal in A.S No.1/2015 before the same

Court challenging the findings of the relief of declaration. Both the appeals

were jointly heard by the lower appellate Court and it independently

analysed the facts and evidence and allowed the appeal and dimissed the

cross appeal.

4. Challenging the findings of the lower appellate Court in both the

appeals, plaintiff has preferred these Second Appeals by contending that,on

improper appreciation of the evidence and the facts, both the Courts below

declined to grant relief in favour of the platiff, which is unjust and prayed to

set aside the findings of the both the Courts below.

5. This Court admitted the appeals on the following substantial

questions of law:

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

i) Whether the lower Appellate Court was right in rejection the relief of permanent injunction in favour of the plaintiff inspite of the specific admission made by the 7th defendant examined as D.W.1 to the effect that the plaintiff is in possession and enjoyment of the suit property?

ii) Whether the lower appellate Court was right in holding that Ex.A1 document is a forged one even without there being a issue in that regard?

Iii) Whether the lower Appellate Court while reversing the Judgment of the Trial Court had assigned congent reasons while differing with the findings of the Trial Court as mandated under Order 41 Rule 31 of CPC with regard to the relief of permanent injunction granted in favour of the plaintiff?

iv) Whether the findings of both the Courts below while rejecting the claim for title made by the plaintiff suffers from perversity due to improper appreciation of oral and documentary evidence?

6. The brief facts of the case are as follows:

Orginally, the suit property along with other properties, belong to one

Nanjunda Gounder and his brother Alaea Gounder with total extent of 3.17

acres. Later, the said property was orally divided between them and 1.32

acres were allotted to Nanjunda Gounder and 1.85 acres were allotted to

Alaea Gounder. Thereafter, on 31.05.196, the said Alea Gounder sold his

property to one Karuppanna Muthali. But, mistakenly, in the sale deed, it

was mentioned as 1.57 acre instead of 1.85 acres. But he was in enjoyment

of 1.85 acres and continued his title for a period of twelve years. The said

Karupanna Muthali prescribed title by adverse possession over the excess of

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

29 cents. While that being so, on 24.01.1994, the said Karupanna Muthali

sold 1.51 acres of land to one Rajan and Babu and the remaining 29 cents in

the said survey number were sold to one Ramthal through sale deed dated

24.05.1996, and in turn, she sold said 29 cents to Saminathan through sale

deed dated 27.05.1998. In turn, the said Saminathan sold to the plaintiff on

15.12.2000 and the plaintiff claimed absolute right over the 29 cents of the

suit property, on contrary the defendants claimed right over the 29 cents of

the suit property. Hence, the suit.

7. But, the contention of the contesting defendants 6 to 8 is that they

denied the plaintiff's absolute right over the suit property as well as they

denied the oral partition as pleaded by the plaintiff. They said that the entire

property an extent of 3.17 acres was equally divided among the legal heirs

between the Nanjunda Gounder and Alea Gounder and the share was

allotted to Alaegounder an extent of 1.57 acres alone was sold to

Karuppanna Mudali and they denied that 29 cents were additionally allotted

to the share of Alae Gounder for the reason that the lands allotted to him

was less cultivable land thus the said Najunda Gounder was allotted 1.57

acres on the Southern side and Karuppanna Mudali was alloted 1.57 acres

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

and hence the defendants have not accepted the plaintiff's case and that

excess allotment of 29 cents belongs to the vendor and now under the

enjoyment of the plaintiff. Hence, prayed to dismiss the appeals.

8.Heard the learned counsel for appellant, and the learned counsel for

the respondent and perused materials available on record.

9. On going through the records, it is seen that the the suit property is

situated in S.No.540/3, and it is an admitted fact that an extent of 3.14 acres

of land was in the said S.No.540/3 and it belongs to Najunda Gounder and

Alea Gounder. The contention of the plaintiff is that the suit property, with

an extent of 29 cents, belongs to his vendor's vendor Karupanna Muthali

and his vendor Alea Gounder as per the oral partition with Nangjunda

Gounder's out of 3.14 acres and an extent of 1.32 acres was allotted to

Nanjunda Gounder and 1.85 acres were allotted to Alea Gounder for the

reason that the cultivable land was allotted to Nanjunda Gounder's share on

the southern side, less cultivable land and hence, more extent was allotted

to him. But the said oral partition was denied by the defendants stating that

3.14 acres were equally divided by Najunda Gounder and Alea Gounder

and hence both of them were allotted 1.57 acres each. Now, the plaintiff has

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

to prove the allotement of 1.85 acres to the Alea Gounder. But there is no

direct evidence on the side of the plaintiff for the allotment of 1.85 acres to

Algea Gounder, but during life time of Alea Gounder, he sold his property

to an extent of 1.57 acres to Karuppana Mudali through sale deed dated

24.05.1996, which is marked as Ex.A1. As pointed out by the defendants

counsel, the recitals in Ex.A1 celearly reveals that 3.14 acres were equally

divided and the Alea Gounder was allotted 1.57 acre alone, and the Court

below rightly appreciated this aspect. But the plaintiff contended that the

additional extent of 29 cents was given to the Alea Gounder which was

transferred to Karuppana Mudalai, even though in Ex.A1 sale deed it was

not mentioned, but the plaintiff openly enjoyed the suit property with the

knowledge of the defendants and others, thereby he prescribed title by

adverse possession but on a perusal of the entire evidence of the plaintiff,

there is no piece of evidence to show that Karuppana Mudali enjoyed 29

cents for more than 12 years with the knowledge of other owners and this

aspect was rightly appreciated by the Court below while discusssing issue

No.2 before the trial Court.

10.Further, the plaintiff claimed that Karuppana Mudali is the

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

owner of 29 cents by oral partition and also took another defence that he

possessed 29 cents by adverse possession contrary to his own pleadings.

When he claimed title based upon the oral partition, simultaneously, he is

not entitled to claim right over the property based upon the adverse

possession and so the claim of adverse possession was also rightly rejected

by the Court below which needs no interference.

11. Furthermore, Karuppan Mudali has sold 1.51 acres of land in suit

survey number to one Rajan and Babu through sale deed dated 24.01.1994,

which is marked as Ex.A9 and as per the recitals is Ex.A9, he retained 6

cents and sold only 1.51 acres to the said purchaser, and if really he is

having 29 cents in survey number, Karuppana Mudali ought to have

mentioned the same in the document/Ex.A9, but there is no such recital in

Ex.A9. But suddenly, he sold 29 cents to Ramathal, his daughter through

sale deed dated 24.05.1996 which was marked as Ex.A2. As discussed

above, he has not owned 29 cents and at the most he is having only 6 cents

in suit survey Number. The said Ramathal sold the said property to one

Saminathan from whom the plaintiff purchased the said property through

sale deed dated 15.12.2000. As discussed above, the plaintiff's vendor has

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

no title to sell 24 cents. Thus the title of the vendors has not been proved

with regard to suit property, and the relief of declaration was rightly

declined by the Court below, which needs no interference. Accordingly,

first question of law is answered.

12. But, the learned counsel for the appellant submitted that, during

trial the defendants admitted that plaintiff is in enjoyment of the suit

property and considering that the trial Court granted the relief of permanent

injunction by observing that plaintiff is in possession of the suit property,

and she should not be disturbed until eviction. Thereby, the said relief was

rightly granted, but the lower appellate Court failed to appreciate the

evidence and erroneously set aside the said findings by allowing the

appeal.As rightly pointed out by the defendant even in the oral evidence, the

plaintiff admits he was not aware of the possession and enjoyment of the

suit property by the purchasers in title. During cross examination of D.W.1,

he gave one word answer that as on date, the plaintiff is enjoying the

property, and based upon that the learned Trial Judge granted such relief of

injunction in favour of the plaintiff while deciding the issue No.4. As rightly

pointed out by the defendants counsel through oral and documentary

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

evidence, the plaintiff was not able to establish that his predecessor in title

enjoyed 29 cents indeed they have not perfected title over the suit property,

therefore the relief of declaration was righlty rejected by the Trial Courtin

favour of the plaintiff, it is settled proposition of law that possession follows

title and forgetting the same the learned trial Judge appreciated the one

word answer given by the defendants and granted relief of injunction which

is unsustainable one and the same is rightly appreciated by the lower

appellate Court which caused no interference. Further,the learned counsel

for the appellant relied upon the Judgement of Supreme Court in Ravinder

Kaur Grewa & others Vs Manjit Kaur & others in CDJ 2019 Sc (886) and

the facts of this case are not applicable to facts of the present case. Further,

the learned counsel for the respondents relied on the Judgment of the

Supreme Court in 2022 SCC Online SC 258, Padhiyar Prahladji Chenaji

(Deceased) through L.R.S Vs Maniben Jagmalbhai(Deceased) Through

L.R.S and other

42.Now, So far as the reliance placed upon the decision of this Court in the case of Anthula Sudhakar(Supra) by the learned Advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff's possesssion, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

property and the defendant has tried to interfere or disturb his possesssion is concerned, what is observed bythe court in the paragraph 15 is the '' lawfull possession'' of th plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff's possession cannot be said to be ''lawful possession''. Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.

13.The above Judgement is squarely applicable to the facts of the present case.

14. The learned appellants counsel put forth another contention that

without proper pleading about the forgery, the learned lower appellate Judge

erroneously gave a finding that sale deed Exs.A3, A4 and A5 are executed

by the person who has no right over the property and the same was executed

fruadelently without any right over the property. But on a perusal of records

it is seen that however there is no specific issue with regard to said

fraudaulent outcome of the documents, but while observing the title over

the suit property on perusal of the sale deeds, Ex.A1 to Ex.A9, the learned

lower appellate Judge arrived the conclusion that the plaintiff's predecessor

holding only six cents in the suit survey Number. But, in the subsequent

sale deed, 29 cents were transferred without any title. Hence, the learned

lower appellate Judge made the observation that those documents were

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

fradulently created. So the observation made by the lower appellate Judge

about the conduct of the party while deciding issue with regard to title of the

suit property and hence it does not require any separate issue Accordingly,

questions of law (ii) is answered.

15. Another objection raised by the plaintiff is that lower appellate

Court has not assigned any cogent reasons while differing with findings of

the Trial Court, as mandated under Order 41 Rule 31 of CPC while rejecting

the relief of permanent injunction. But on seeing the findings of the lower

appellate Court, it is seen that he had independently anlysed the facts and

evidence and framed the points and on considering the oral and

documentary evidence, he came to the conclusion that the plaintiff's and his

predecessor-in-title having no title with regard to the suit property.

Moreover, the documents filed by the defendants also reveals that another

sharer Nanjounda Gounder was allotted with 1.57 acres and not allotted

with 1.32 acre as claimed by the plaintiff and also by appreciating the

recitals in the sale deeds he came to the conclusion that Algae Gounder was

allotted with 1.57 acres and not 1.81 acres as claimed by the plaintiff

without title. By considering the Revenu records like Patta which stands in

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

the name of the defendants and other pattadarars in suit survey number and

it was marked as Ex.B2 in suit Survey No.540/3 with an extent of 265.50

hectares is allotted in the name of the 10 persons. Hence, both Revenue

Records as well as title deeds clearly established the fact that the plaintiff is

not in possession of the suit property. Accordingly, lower appellate Court

rightly rejected the relief of permanent injunction by giving cogent reasons.

Hence, the objection raised by the plaintiff is not acceptable. Accordingly,

questions of law (iii) is aswered .

14.Therefore, plaintiff has failed to establish that suit property was

under the enjoyment of his predecessor in title Algea Gounder and also not

proved that by way of adverse possession, the suit property belongs to

plaintiff's predecessor-in-title. On the other hand, the defendants have

established that total extent 3.14 acres were equally divided, 1.57 acre was

allotted to Nanjunda Gounder and another 1.57 acres were allotted to the

plaintiff's predecessors-in-title Algaegounder. Furthermore, recitals in the

sale deed dated 24.01.1994 executed by the plaintiff's vendor's vendor

proves that he retained only 6 cents after selling of 1.51 acres in favour of

Rajan and Babu. Hence, the plaintiff's vendor is having 6 cents for that

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

alone and the plaintiff has to work out his remedy. The lower appellate

Court rightly rejected the declaration as well as injunction as prayed for by

the plaintiff's which needs no interference. Both the second appeals are

dismissed as devoid of merits. Accordingly, findings of the lower appellate

Judge is confirmed. Consequentally original suit is dismissed as no

merits.No costs.

11.10.2022.

Index: yes/No Speaking: Yes/No pbl

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

T.V.THAMILSELVI,J.

Pbl

To

1. The Principal Sub-Ordinate Judge, Krishnagiri

2.The District Munsif Court, Krishnagiri.

3.The Section Officer, VR Section.

SA.Nos.954 and 955 of 2016

11.10.2022

https://www.mhc.tn.gov.in/judis S.A Nos.954 and 955 of 2016

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