Madras High Court
V.Chella Kannu Thevar vs Nadar Uravinmurai Sangam on 19 April, 2023
S.A.(MD)No.246 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.246 of 2017
V.Chella kannu thevar ... Appellant
/Vs./
1.Nadar Uravinmurai Sangam,
Represented by its Secretary and the President.
2.Hindu Nadar Middle School, Settikurutchi,
Represented by its Manager.
3.A/m. Veilukandhamman Kovil Settikurutchi,
Settikurutchi Village,
Kovilpatti Taluk,
Tuticorin District.
4.S.Ayyalusamy
5.V.Karthikeyan
6.V.Meenatchi ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree passed in A.S.No.249 of 1998
on the file of the Sub Court, Kovilpatti, dated 27.01.2015 reversing the
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S.A.(MD)No.246 of 2017
judgment and decree passed in O.S.No.84 of 1994 on the file of the
District Munsif, Kovilpatti, dated 08.12.1997.
For Appellant : Mr.S.Kadarkarai
For Respondents : Mr.B.Saravanan
Senior Counsel
for Mr.S.Thiruppathi
JUDGMENT
This second appeal has been filed challenging the judgment and
decree of the lower appellate Court, namely, Sub Court, Kovilpatti dated
27.01.2015 in A.S.No.249 of 1998. The fourth plaintiff representing the
temple in the suit in O.S.No.84 of 1994 on the file of the District Munsif
Court, Kovilpatti is the appellant herein. The defendants in the suit are
the respondents 1 and 2 herein. In the forthcoming paragraphs, the
parties are described as per their litigative status in the suit.
2. The suit was filed for declaration, permanent injunction and
also for mandatory injunction in respect of two items of the properties,
namely Schedule I and Schedule II. A written statement was also filed by
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S.A.(MD)No.246 of 2017
the defendants denying the plaintiff's claim in respect of item No.1 of the
suit schedule properties. The defendants had claimed adverse
possession. However, in respect of Item No.2 of the suit schedule
properties, the defendants claimed that they are the absolute owners of
the same.
3. Based on the pleadings of the respective parties, issues were
framed by the trial Court. Before the trial Court, the plaintiffs filed 15
documents, which were marked as Exs.A1 to A15 and one witness was
examined, namely Varadharajulu Naidu as P.W.1. On the side of the
defendants, five documents were filed, which were marked as Exs.B1 to
B5 and two witnesses were examined on their side, namely, Krishnasamy
Nadar as D.W.1 and Mariyasoosai Thalaivar as D.W.2. Two Court
exhibits were marked namely Advocate Commissioner's report as well as
plan as Exs.C1 & C2 respectively. The trial Court decreed the suit in
entirety in favour of the plaintiff in respect of Item No.1 and Item No.2 of
the suit schedule properties and the declaratory relief as well as the
permanent injunction relief was granted in favour of the plaintiff.
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S.A.(MD)No.246 of 2017
4. Aggrieved by the judgment and decree dated 08.12.1997 passed
in O.S.No.84 of 1994 by the District Munsif Court, Kovilpatti, the
defendants preferred the first appeal in A.S.No.249 of 1998 on the file of
the Sub Court, Kovilpatti. The lower appellate Court, by its Judgment
and Decree dated 27.01.2015 partly allowed the appeal by dismissing the
suit filed by the plaintiff in respect of Item No.2 of the suit schedule
properties and by confirming the decree of the trial Court passed in
favour of the plaintiff in respect of Item No.1 of the suit schedule
properties.
5. Aggrieved by the Judgment and decree passed by the lower
appellate Court dated 27.01.2015 with regard to the dismissal of the suit
in respect of Item No.2 of the suit schedule properties, this Second
Appeal has been filed. This Court, on 19.06.2017, admitted the Second
Appeal by formulating the following substantial questions of law:
“a) Whether the Lower Appellate Court is correct
in reversing the Judgment and Decree of dismissal, in so
far as the Item No.2 of the suit property is concerned,
against the judgment of the Trial Court?
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S.A.(MD)No.246 of 2017
b) Is it not an error apparent in law, as the Lower
Appellate Court neglected to apply the correct principles
of law, on Burden of Proof/Presumption, under the Indian
Evidence Act?
c) Whether the Lower Appellate Court is correct,
in allowing the Appeal Suit, brushing aside the available
reasonable evidence, as per Ex.A4, Settlement Record of
the Revenue Department, in favour of the 1" Appellant?
d) Is it not an error of law committed by the Lower
Appellate Court in neglecting to consider the legal effect
of a Revenue Settlement, when the same had been acted
upon/implemented for the past several decades?
e) Whether the Lower Appellate Court is correct in
allowing the Appeal Suit, when the appellants herein had
established their case by producing necessary oral and
documentary evidence, before the Trial Court, which
impelled the Trial Court to dismiss a part of the suit
claim?
f) Whether the Lower Appellate Court is correct to
in decreeing the appeal, by rejecting Ex.A2 and not
appreciating Ex.A4, which are Government records?"
6. At the outset, the learned senior counsel appearing for the
respondents / defendants would submit that the lower appellate Court, by
its judgment and decree, dated 27.01.2015 in A.S.No.249 of 1998 has
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S.A.(MD)No.246 of 2017
rightly given a finding that the defendants are entitled to 32 cents as per
Ex.B1 in Item No.2 of the suit schedule properties.
7. The learned counsel appearing for the appellant, on instructions
would also submit that the plaintiff has no grievance, if the defendants
restrict their ownership only in respect of 32 cents in Item No.2 of the
suit schedule properties. He would submit that if the interest of the
plaintiff is protected in respect of remaining extent of the land in S.No.
78/1B, the plaintiff will be satisfied.
8. When a categorical finding has been given by the lower
appellate Court in Paragraph No.24 of the lower appellate Court
Judgment dated 27.01.2015 passed in A.S.No.249 of 1998 that the
defendants are entitled to 32 cents in Item No.2 of the suit schedule
properties, which is extracted hereunder:
“24.vdNt 2k; jgrpy; nrhj;J KOtJk;
thjpfSf;Fg; ghj;jpag;gl;lJ vd tpsk;Gif nra;J
tprhuiz ePjpkd;wk; gpwg;gpj;Js;s jPh;gG
; kw;Wk;
jPh;g;ghiz uj;J nra;aj;jf;fJ vd;W jPh;khdpf;Fk;>
cah;ePjpkd;w cj;juTg;gb gpujpthjpfs; gp.rh.M.1
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S.A.(MD)No.246 of 2017
gbahd 32 nrd;l; g+kpia Gy vz;.78/1gp-f;Fs;
tlgf;fj;jpy; ,Ug;gjhf Urg;gpj;jpUg;gjhy;
mijg;nghWj;J kl;Lk; ,e;j Nky;KiwaPL
mDkjpf;fj;jf;fJ vd;Wk; ,e;j ePjpkd;wk; KbT
nra;J ,e;j vOtpdhTf;F tpilaspf;fg;gLfpwJ.
25.Kbthf> gp.rh.M.1 gbahd 32 nrd;l; g+kp Gy
vz;.78/1gp-f;Fs; tlgf;fj;jpy; ,Ug;gjhf jPh;khdpj;J
mijg;nghWj;J ,e;j Nky;KiwaPL
mDkjpf;fg;gLfpwJ. 2k; jgrpy; nrhj;J KOtJk;
thjpfSf;Fg; ghj;jpag;gl;lJ vd tpsk;Gif nra;J
tprhuiz ePjpkd;wk; gpwg;gpj;Js;s jPh;gG
; kw;Wk;
jPh;g;ghiz uj;J nra;J jPh;g;gspf;fg;gLfpwJ. mtuth;
nryTj;njhifia mtuth;fNs Vw;Wf;nfhs;s
Ntz;Lnkd;W cj;jutplg;gLfpwJ.”
and that too when the plaintiff has categorically admitted before this
Court through their counsel that the defendants are entitled to extent of
32 cents in Item No.2 of the suit schedule properties and the learned
Senior Counsel appearing for the respondents / defendants has also
submitted before this Court, on instructions that the defendants are
restricting their ownership claim only to the extent of 32 cents in Item
No.2 of the suit schedule properties, this Court is of the considered view
that this Second Appeal can be disposed of in the following terms:
(a) The respondents / defendants are entitled to claim ownership
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S.A.(MD)No.246 of 2017
only in respect of 32 cents on the northern side of S.No.78/1B, which
forms part of Item No.2 of the suit schedule properties;
(b) In respect of remaining portion of the land in S.No.78/1B, the
plaintiff is the absolute owner, which includes the entire Item No.1 of the
suit schedule properties as well as a portion of Item No.2 of the suit
schedule properties excluding the 32 cents owned by the respondents /
defendants. The substantial questions of law referred to supra formulated
by this Court at the time of admission by this Court to the appeal referred
to supra are answered accordingly.
9. In the result, this Second Appeal is disposed of. There shall be
no order as to costs.
19.04.2023
Index : Yes / No
NCC : Yes / No
Sm
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S.A.(MD)No.246 of 2017
TO:
1.The Sub Court, Kovilpatti.
2.The District Munsif, Kovilpatti.
3.The Section Officer,
VR Section, Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.246 of 2017
ABDUL QUDDHOSE, J.
Sm
Judgment made in
S.A.(MD)No.246 of 2017
Dated:
19.04.2023
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