Madras High Court
Marimuthu vs Karthikeyan on 23 September, 2022
S.A.No.541 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.541 of 2021
and
C.M.P.No.11301 of 2021
1. Marimuthu
2. Sanikkalamai Subramani @ Subramani
3. Subramani
4. Vijayalakshmi
5. Minor Archana
(Minor represented by next friend/
guardian mother)
...Appellants
Vs
1. Karthikeyan
2. R.Parthiban ...Respondents
PRAYER: Second Appeal is filed under section 100 of the Civil
Procedure Code against the judgment and decree dated 16.03.2021
made in A.S.No.38 of 2020 on the file of the learned I Additional Sub
Judge of Erode, confirming the judgment and decree dated
14.02.2020 made in O.S.No.29 of 2012 on the file of the learned
Principal District Munsif of Erode.
For Appellants : Mr.B.Mohan
For Respondents : Mr.S.Thangavel
/Caveators
****
https://www.mhc.tn.gov.in/judis
1
S.A.No.541 of 2021
JUDGMENT
The defendant who has lost before the Courts below is the
appellant before this Court.
2. The facts in brief are herein narrated below describing the
parties in the same ranking as before the Trial Court.
(i) The plaintiffs had filed a suit seeking to have themselves
declared as the absolute owners of the suit schedule property,
directing the defendants to deliver vacant possession of the suit
property to the plaintiffs and for a permanent injunction restraining
the defendants from putting up any new construction.
(ii) It is the case of the plaintiffs that the larger extent of the
suit property situate in Nanjai Uthukuli Village belonged to their
ancestors. Ultimately, the plaintiffs' father, Ramalinga Gounder, who
succeeded to the property, during his life time, had executed a Will
dated 23.02.2005 bequeathing the suit property upon the plaintiffs.
The said Ramalinga Gounder died on 04.03.2005 and the Will
thereupon came into effect. The plaintiffs would submit that the fact
that the larger extent of the property belonged to them is evidenced
by a Mortgage Deed executed on 25.11.1921 by their great
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S.A.No.541 of 2021
grandfather, Sengottaiya Gounder in favour of Komarappa Gounder in
respect of an extent of 9.03 acres in S.F.No.537A on 31.10.1927. Yet
another Mortgage Deed was executed by the said Sengottaiya
Gounder in favour of Karunthevampalaym Co-operative Society with
reference to the very same extent of 9.03 acres in S.F.No.537A.
Thereafter, the plaintiffs' father, Ramalinga Gounder had executed a
registered Mortgage Deed in favour of one Ramasamy Gounder on
21.06.1962 in respect of an undivided half share in Old S.F.No.537/A.
The remaining share belonged to the said Ramalinga Gounder's
brother, Muthusamy Gounder.
(iii) It is the case of the plaintiffs that their father and his
brother, Muthusamy Gounder had orally divided the property and had
sold portions of the property to several persons. On the west of the
suit property, one S.A.Loganathan had purchased an extent of 1.47
acres in R.S.No.508 under a registered Sale Deed dated 28.10.2002.
The plaintiffs would submit that the lands were being personally
cultivated by their father. While so, 10 years prior to the suit, the
plaintiffs' father had permitted the defendants to put up temporary
hut in the said property on condition that they would vacate the
same as and when requested. The said Ramalinga Gounder
thereafter settled in Vellakoil where his wife had inherited the
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S.A.No.541 of 2021
property from her parents. After the death of their father, the
plaintiffs wanted to settle in their native village and had decided to
construct a house in the said property. In the first week of January
2010, the plaintiffs revoked theirpermission and requested the
defendants to vacate and hand over the vacant possession of the suit
property. Though the defendants were put on notice, they had
however refused to vacate the same. The Nanjai Unthukuli
Panchayat Board with the permission of the plaintiffs' father had set
up a television room for them, which they had undertaken to
demolish the same as and when requested. However, the defendant
had not vacated the property and were attempting to set up an
independent title. Therefore, the plaintiffs had come forward with the
above suit.
3. The written statement of the defendants was to the effect
that the property did not belong to Ramalinga Gounder or his
predecessor-in-title. The Will and Mortgages were created with sole
intent of evicting the defendants from the property. The second
defendant had raised a question of valuation, since according to the
second defendant the suit property was a house site and not an
agricultural land. They also pleaded non-joinder of occupants of the
property. They denied the factum of permissive occupation and
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S.A.No.541 of 2021
assumed upon themselves an independent right.
4. The Trial Court, on considering the pleadings that had
been submitted by all the defendants, had framed the following
issues:
a) Whether the suit property is the
ancestral property of the plaintiffs' family and the
plaintiffs' are the absolute owners of the same?
b) Whether the defendants are the
permissive occupants of the suit property?
c) Whether the plaintiffs are entitled to
the relief of declaration of title as prayed by them?
d) Whether the plaintiffs are entitled for
the relief of recovery of possession?
e) Whether the plaintiffs are entitled for
the relief of permanent injunction as prayed for?
f) Whether the suit is not properly valued
for the purpose of Court fees and jurisdiction?
5. The first plaintiff had examined himself as P.W1 and
examined Thirumalaisamy and Muthusamy as P.Ws.2 and 3. Exs.A1
to A24 were marked by the plaintiffs in support of their case. On the
side of the defendants, 13 witnesses were examined which included
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S.A.No.541 of 2021
the fifth defendant as D.W1 and Exs.B1 to B21 were marked. The
Commissioner's report was marked as Exs.C1 and C2 and through the
Court witnesses, Ex.C1 to C69 were marked.
6. The Trial Court, on considering the evidence on record
and after hearing the arguments of the learned counsel on both
sides, had proceeded to allow the appeal and directed the defendants
to vacate and hand over the possession to the plaintiffs within a
period of two months. Challenging the same, the defendants had
filed an appeal in A.S.No.38 of 2020 on the file of the I Additional
Subordinate Judge, Erode. The learned Subordinate Judge also
confirmed the judgment and decree of the trial Court by dismissing
the appeal. Aggrieved by the same, the defendants are now before
this Court.
7. When the matter had come up for hearing on 02.09.2022,
the plaintiffs had entered caveat and the matter, which was first
listed on 03.08.2021 was being adjourned, since the
appellants/defendants had submitted that they would be filing the
documents. However, after over a year, no documents have been
filed. Therefore, this Court has proceeded to hear the arguments of
the learned counsels on both sides.
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S.A.No.541 of 2021
8. The learned counsel for the appellants/defendants would
submit that the defendants had taken the plea of adverse possession
and limitation which has not been properly appreciated by the Courts
below. He would further argue that the plaintiffs, who have come
forward with the suit for declaring the title, has not filed any
document of title, but has only filed Mortgage Deeds as Exs.A7 to 10,
which would not prove the title of the plaintiffs to the suit property.
That apart, they would also contend that the Will-Ex.A1 has not been
proved in the manner known to law. Therefore, they would submit
that the Courts below have erred in decreeing the suit.
9. Per contra, Mr.S.Thangavel, learned counsel for the
respondents 1 and 2 / Caveators would submit that the Will has been
proved by examining the attesting witness-P.W2 and that apart, the
plaintiffs had filed Exs.A7 to A9, which are the Mortgage Deeds
created in the year 1921, 1927, 1962 and also Ex.A19-Sale Deed
dated 28.10.2002 to prove that the plaintiffs and prior to them, the
predecessor-in-title have been in exclusive possession and
enjoyment of the suit property. He would submit that the plea of
adverse possession has not been proved by the defendants. He
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S.A.No.541 of 2021
would further submit that the defendants had not pleaded limitation
and now for the first time its being raised and therefore, the well
considered judgment and decree of the Courts below cannot be upset
in this second appeal.
10. Heard the learned counsel on either side and perused the
materials available on record.
11. The plaintiffs have come to Court stating that the suit
property and its larger extent belonged to them ancestrally. To
prove the continued possession and enjoyment of the same, they
have marked Exs.A7 to A9, which are the Mortgage Deeds executed
in respect of the suit properties starting from the year 1921 onwards.
The Will executed by Ramalinga Gounder in favour of the plaintiffs
has been proved in the manner known to law by examining P.W2, the
Executor of the Will. The defendants have filed their written
statement, in which, they have denied the title of the plaintiffs and
stated that they are in possession of the same without pleading the
adverse possession. The possession of the property by the
defendants is admitted by the plaintiffs, who would submit that the
defendants are in permissive occupation of the property. The
defendants have not been able to prove that they have set up the
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S.A.No.541 of 2021
plea of adverse possession, since no where in the written statement
has the plea been taken. The records would further show that the
first defendant had filed an additional written statement taking the
plea of limitation. The order admitting the additional written
statement in I.A.No.9 of 2014 was taken up on revision by this Court
in C.R.P(PD).No.552 of 2015. On 22.12.2017, the statement was
directed to be returned and therefore, the plea of limitation has also
not been taken up, since it is a question of both fact as well as law.
The fact that the defendants plead adverse possession only
strengthens the plea of the plaintiffs that they are the owners of the
suit property who have permitted the defendants to reside in the suit
lands. Therefore, I see no reason to disagree with the judgment and
decree of the Court below which have concurrently, on perusing the
evidence come to the conclusion that the suit has to be decreed and
the defendants have not proved their case. The plea of limitation has
also not been raised by the defendants. Therefore, In these
circumstances, this Second Appeal does not give rise to question of
law much less than a substantial question of law and therefore, is
dismissed. However, there shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
23.09.2022
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S.A.No.541 of 2021
Index : Yes/No
Speaking order/non-speaking order
srn
To:
1. The I Additional Sub Judge, Erode,
2. The Principal District Munsif, Erode.
3. The Section Officer, V.R.Section, High Court, Madras
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S.A.No.541 of 2021
P.T.ASHA, J.,
srn
S.A.No.541 of 2021
and
C.M.P.No.11301 of 2021
23.09.2022
https://www.mhc.tn.gov.in/judis
