Madras High Court
Viswanathan vs Ramachandran (Died) on 13 September, 2022
S.A.No.1238 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 13.09.2022
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.No. 1238 of 2004
Viswanathan ...Appellant
Vs.
1. Ramachandran (died)
2. Rajeswari
3. R.Ramajayam
4. R.Sathish Kumar
5. R.Rajasekar
(Respondents 2 to 5 are impleaded as LRs of the
deceased Ramachandran vide order dated 20.11.2018
made in C.M.P.No.434 of 2013 in S.A.No.1238 of 2004 by SMSJ.)
...Respondents
PRAYER : Second Appeal filed Under Section 100 of the Code of Civil
Procedure against the Judgment and Decree of the Learned Additional
District and Sessions Judge (Fast Track Court No.II), Tindivanam in
A.S.No.64 of 2002 dated 14.02.2003 confirming the judgment and decree of
the Learned District Munsif of Vanur in O.S.No.426 of 1995 dated
26.04.2000.
For Appellant : Mr.Prithivi
for Mr.Kaithamalai Kumaram
1/12
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S.A.No.1238 of 2004
For Respondents : No appearance for D2 to D5
D1 - died
JUDGEMENT
This Second Appeal is preferred as against the Judgment and Decree
of the learned Additional District and Sessions Judge (Fast Track Court
No.II), Tindivanam in A.S.No.64 of 2002 dated 14.02.2003 confirming the
judgment and decree of the Learned District Munsif of Vanur in O.S.No.426
of 1995 dated 26.04.2000.
2. For the sake of convenience, the parties are referred to as per their
ranking before the trial Court.
3. The case of the plaintiff in brief is as follows:-
The suit is filed for declaration and permanent injunction. The
plaintiff and 1st defendant are the brothers. The suit property is
Gramanatham. The plaintiff took possession of the same 15 years ago and
built up a thatched house and has been living peacefully and also paying
taxes. Before possession, the suit property was a vacant site. Except the
plaintiff, nobody else was in possession and enjoyment. The plaintiff and
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S.A.No.1238 of 2004
the 1st defendant are not in good terms. From 19.01.1995 onwards, the
defendant is threatening the plaintiff that he would set fire to the hut, drive
him away from there and will take possession forcefully. The plaintiff hails
from a poor family. If he is driven out by the defendant, he along with his
family members will be in streets without any shelter. The defendant is
taking law in his own hands and he has support in the village and also had
man power. Hence, the plaintiff filed the suit for declaration and permanent
injunction.
4. The defendant, resisting the suit claim, filed a written statement,
inter alia, stating that the suit is not proper and he denies that the suit
property exclusively belongs to the plaintiff and that the plaintiff has not
taken possession of the suit property 15 years ago and has not been in
peaceful possession and enjoyment of the suit property. The suit property
along with the thatched house does not belong to the plaintiff and it is not a
Gramanatham land. On 29.03.1985, the suit property was settled in favour
of Venkatakrishna Reddiyar by one Thirukkamu Reddiar by way of
Registered Settlement Deed and handed over possession to him also. As
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S.A.No.1238 of 2004
such, the vacant site was in possession of Venkatakrishna Reddiar, who in
turn, executed a Will in favour of one Sarojini Ammal and she has been in
possession and enjoyment of the suit property. Several years before, in the
said land, the defendant's father Velayutha Pandithar built a thatched house,
with the permission of Venkatakrishna Reddiar. Therefore, the thatched
house is built by Velayutha Pandithar and not by the plaintiff. On
20.06.1994, the said Sarojini Ammal entered into a sale agreement for
Rs.13,000/- with one Rajeswari Ammal, who is none other than the
defendant's wife. On the date of agreement itself, the suit property was
given in possession to Rajeswari Ammal. Hence, Rajeswari Ammal is
necessary party to this suit. The suit property is not in possession of the
plaintiff. Hence, the defendant prayed that the suit is not maintainable and is
liable to be dismissed with costs.
5. Based on the pleadings, the trial Court has framed the following
issues:
i) Whether the plaintiff is entitled for declaration and permanent
injunction?
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S.A.No.1238 of 2004
ii)Whether the suit property is in possession of the plaintiff?
iii)Whether the agreement of sale dated 20.06.1994 of the suit
property is valid?
iv)Whether the suit property is in possession of the defendant?
v)Whether the suit is bad for non-joinder of necessary parties?
vi)To what relief the plaintiff is entitled for?
6. On the side of the plaintiffs, P.W.1, P.W.2 and P.W.3 were
examined and seven documents were marked as Ex.A.1 to Ex.A.7. On the
side of the defendants, they examined DW.1, D.W.2 and D.W.3 and were
marked as Exs.B.1 and B.2 and Commissioner's Report and sketch were
marked as Exs.C1 and C2.
7. Based on the materials placed on record, both the oral and
documentary evidence adduced by the respective parties and on considering
the submissions made by the learned counsel for the parties, all the issues
were answered against the plaintiff and the trial Court dismissed the suit.
Aggrieved by the same, the plaintiff filed an Appeal Suit in A.S.No.64 of
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S.A.No.1238 of 2004
2002 before the lower appellate Court, which also came to be dismissed.
Aggrieved by the same, the plaintiff preferred the present appeal.
8. At the time of admission of this Second Appeal, the following
substantial questions of law were framed for consideration:
i) Whether the courts below are justified in
rejecting Ex.A5 patta issued in favour of the
appellant while considering the title of the
appellant to the suit property?
ii) Whether the lower appellate Court is
right in dismissing the suit in toto without
considering the finding of the trial Court that the
suit property is joint family property of the
appellant and the respondent?
9. The learned counsel appearing for the plaintiff/appellant submits
that the suit property is a Gramanatham and the plaintiff has been in
occupation and enjoyment of the property even at the time of filing of the
suit. There were patta proceedings in the year 1992 initiated at the instance
of the plaintiff and in the cross-examination, the defendant has admitted
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S.A.No.1238 of 2004
that there were patta proceedings in the year 1992. Finally, the patta was
issued in favour of the plaintiff after full contest by the defendant as the
defendant made a strong objection for grant of patta in favour of the
plaintiff.
10. However, after considering the objections of the defendant, the
Revenue Authority issued patta in favour of the plaintiff. There was no
finding rendered by the Courts below with regard to the initiation of patta
proceedings, over which, strong contest was made by the defendant as early
as in the year 1992, which is prior to the filing of the suit. Even subsequent
to the issuance of patta in favour of the plaintiff, the defendant or his legal
heirs, have not filed any statutory appeal against the issuance of the patta in
favour of the plaintiff.
11. On 16.06.2022, this Court directed the appellant to get
instructions whether the defendant/respondent had filed any appeal against
grant of patta before the RDO and whether any further proceedings were
taken before DRO or before the Collector and its natural culmination.
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S.A.No.1238 of 2004
12. In pursuant to the above order, the matter is listed today. No one
represented for the defendants/respondents even though the matter is posted
for submissions of the respondents. The learned counsel for the
plaintiff/appellant submitted that to the best of his client's knowledge, no
proceedings were initiated against the grant of patta in favour of the
appellant by the defendants/respondents.
13. On perusal of Ex.P5 patta, issued in favour of the
plaintiff/appellant, it appears that the same issued even prior to the filing of
the suit. The patta was issued based on the plaintiff's representation made in
the year 1992 and after contest made on behalf of the defendant, it was
issued in the year 1995 in favour of the plaintiff. In fact, the defendant has
raised strong objection for grant of patta in favour of the plaintiff/appellant
and after considering the objections of the defendant, the patta came to be
issued in favour of the plaintiff/appellant by the Revenue authorities.
Therefore, the Courts below out not to have rejected the patta in toto and
further, this aspect was also admitted by the defendant in his cross-
examination.
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S.A.No.1238 of 2004
14. The trial Court has also appointed an Advocate Commissioner,
who after conducting inspection, filed a report, wherein he has specifically
noted that there was a thatched house and other house hold items and all
these aspects would clearly prove that the appellant has been in possession
of the suit property, which aspect was not considered by the Courts below.
Even the trial Court in its findings, has observed that the suit property was
in joint possession of both the parties. This finding cannot be accepted for
simple reason that the defendant made objection before the Revenue
authorities for grant of patta in favour of the plaintiff and after considering
the objections raised by the defendant, the patta came to be issued, which
ultimately shows that the property has been in possession and enjoyment of
the plaintiff/appellant, which aspect was unnoticed and failed to give
finding on this point by both the courts below.
15. In the light of the above discussion, this Court is of the considered
view that the Courts below are not justified in rejecting the Ex.P5 patta
stood in the name of the plaintiff in respect of suit property and that the
plaintiff/appellant has been in possession and enjoyment of the same.
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S.A.No.1238 of 2004
Accordingly, the first substantial question of law is answered in favour of
the plaintiff/appellant and against the defendant/respondent.
16. As far as the second substantial question of law is concerned, in
fact, even prior to the filing of the suit in the year 1992, patta proceedings
were initiated by the plaintiff/appellant and after considering the objections
raised by the defendant/respondent, the Revenue Authority issued patta in
favour of the plaintiff recognizing the possession of the plaintiff/appellant.
This would clearly establish that the suit property is in exclusive possession
of the plaintiff/appellant and it is not in possession of the joint family,
which was not considered in toto by the Courts below. Accordingly, the
second substantial question of law is also answered in favour of the
plaintiff/appellant and against the defendants/respondents.
17. In the result, the Second Appeal is allowed. Consequently, the
Judgment and Decree passed by the learned Additional District and
Sessions Judge (Fast Track Court No.II), Tindivanam in A.S.No.64 of 2002
dated 14.02.2003 as well as the judgment and decree of the learned District
Munsif of Vanur in O.S.No.426 of 1995 dated 26.04.2000, are set aside and
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S.A.No.1238 of 2004
O.S.No.426 of 1999 is decreed as prayed for. Both parties shall bear their
own costs.
13.09.2022
Pns
Index : Yes / No
Internet : Yes / No
To
1. The Learned Additional District and Sessions Judge,
(Fast Track Court No.II), Tindivanam.
2. The Learned District Munsif,
Vanur.
https://www.mhc.tn.gov.in/judis
S.A.No.1238 of 2004
KRISHNAN RAMASAMY, J.
Pns
S.A.No.1238 of 2004
13.09.2022
https://www.mhc.tn.gov.in/judis
