Madras High Court
Annadurai Chettiar vs Subramanian on 27 April, 2023
S.A.(MD)No.133 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.133 of 2017
and
C.M.P.(MD)No.2131 of 2017
Annadurai Chettiar ... Appellant
/Vs./
Subramanian ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the Judgment and Decree dated 28.07.2015 made in
A.S.No.1 of 2014 on the file of the Sub Court, Sivagangai, confirming
the judgment and decree dated 19.11.2013 made in O.S.No.9 of 2010 on
the file of the District Munsif, Sivagangai.
For Appellant : Mr.Mohammed Ibram Saibu
for M/s.Ajmal Associates
For Respondent : Ms.K.Shwathini
for M/s.G.Prabhu Rajadurai
1/16
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
JUDGMENT
This Second Appeal has been filed challenging the concurrent
findings of the Courts below. The plaintiff in the suit in O.S.No.9 of
2010 on the file of the file of the District Munsif Court, Sivagangai, is
the appellant herein. The respondent is the defendant in the said suit. In
the forthcoming paragraphs, the parties are described as per their
litigative status in the suit.
2. As seen from the plaint, the suit property originally belonged to
the grandmother of the plaintiff, namely Veeramakali, vide registered sale
deed dated 15.08.1942. According to the plaintiff, the extent of the
property was east-west 19 kejems, equivalent to 57 feet and east-west 16
kejems equivalent to 48 feet. According to the plaintiff, out of larger
extent, the suit property measures north-south 9 ½ feet and east-west 48
feet. According to the plaintiff, the entire property devolved upon his
father, namely, Meyappa Chettiar, through partition. It is also the case of
the plaintiff that pursuant to the partition that took place between the
plaintiff and his brothers, the suit property and its adjacent portion was
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
allotted to him and he has been in possession and enjoyment of the same
for a long number of years.
3. According to the plaintiff, on the southern side of the suit
property and its adjacent portion, the plaintiff's house and his oil shop are
located. According to the plaintiff, the suit property is a vacant site. It is
the case of the plaintiff that on the northern side of the suit property, the
property belonging to Vaduga Pandaram Madam and Nandhavanam is
there and in the said property, the defendant had put up a tiled shed and
was running a saw mill.
4. According to the plaintiff, the defendant has now closed the
said saw mill by demolishing the tiled shed and has started constructing a
new building by encroaching into the vacant site belonging to the
plaintiff by claiming that the said property belongs to him. The plaintiff
claims that he has lodged a complaint before the Sivagangai Town Police
on 15.11.2009 against the defendant. According to him, since there was
no proper enquiry conducted by the Superintendent of Police,
Sivagangai, he was constrained to file a civil suit.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
5. However, according to the defendant, as seen from his written
statement, he has categorically contended that the suit property did not
belong to Veeramakali, as claimed by the plaintiff and it never devolved
upon the plaintiff's father, namely, Meyappa Chettiar under partition, as
claimed by the plaintiff. The defendant also contends that the suit
property is not a vacant site, as claimed by the plaintiff. The defendant
has also denied that he was running a saw mill in the property belonging
to Vaduga Pandaram Madam by putting up a tiled shed.
6. According to the defendant, the suit property is lying on the
northern side of the plaintiff's house and by keeping the plaintiff's
northern wall as a common wall, the defendant is enjoying the suit
property. According to the defendant, only on the northern common wall
of the plaintiff's house, there is a kavanjaly and a tiled shed was put up
with support of the said kavanjaly and in the said tiled shed, the
defendant was having a saw mill. The defendant has also stated that it is
false to allege that he has been running a saw mill on the northern side of
the suit property by putting up a tiled shed. The defendant also contends
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
that the new construction after demolition of the saw mill had
commenced one year back and the entire three floor building is about to
be completed by him.
7. According to the defendant, the plaintiff who all along remained
a silent spectator has filed the suit only to harass the defendant and also
to unlawfully extract money from him. The defendant claims that the suit
property was purchased by him under a registered sale deed dated
02.12.1983 for valuable consideration from its owner and he has been in
possession and enjoyment of the same as the absolute owner. According
to the defendant, the suit property and the property belonging to
Murugaboopathy and the property belonging to the plaintiff were
subdivided as per their respective possession during town survey in the
year 1961 to 1971. According to the defendant, the said fact was very
much known to the predecessors of the plaintiff.
8. According to the defendant, the measurement of the suit
property described in the plaint is false. According to him, the
description and measurement shown in the amended plaint is also
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
incorrect. According to the defendant, the plaintiff has wrongly
described that the suit property is situated in T.S.No.52 on the southern
portion to the extent of 408 sq.ft.
9. Based on the pleadings of the respective parties, the trial Court
framed the following issues:
(a) Whether the plaintiff is the absolute owner of the suit property?
(b) Whether the defendant is the absolute owner of the suit
property as per the registered sale deed dated 02.12.1983 as alleged?
(c) Whether the plaintiff is entitled to the relief of declaration and
possession as prayed for?
(d) Whether the plaintiff is entitled to the relief of mandatory
injunction as prayed for?
(e) To what other reliefs?
10. On the side of the plaintiff, one witness was examined, namely
the plaintiff himself as P.W.1 and 10 documents were marked, namely
Ex.A1 to A10. On the side of the defendant, three witnesses were
examined, namely the defendant himself as D.W.1 and the Town
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
Surveyor, Sivagangai as D.W.2 and another person, by name Murugan as
D.W.3. On his side, 16 documents were filed, namely Exs.B1 to B16.
Apart from the documents filed on the side of the plaintiff and the
defendant, the Advocate Commissioner's report was marked as Ex.C1
and the Advocate Commissioner's plan was marked as Ex.C2 and the
series of photographs annexed along with the Commissioner's report was
marked as Ex.C3.
11. After careful consideration of the oral and documentary
evidence available on record, the trial Court, namely the District Munsif
Court, Sivagangai, by its Judgment and Decree dated 19.11.2013 in
O.S.No.9 of 2012 dismissed the suit by giving the following reasons:
(a) After extracting the relevant portion of the cross-examination
of P.W.1, the trial Court has held that the plaintiff has taken different
stands at various point of time and in the various stages of his cross-
examination. The trial Court has given a finding that it is clear that the
suit property lies within the northern wall of the plaintiff's house and
Murugaboopathy's house;
(b) It is also an admitted case that Murugaboopathy's house is
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
situated in the northern side of the suit property;
(c) Therefore, inbetween the plaintiff's house and the said
Murugaboopathy's house, the north-south extent is only 12 ½ feet. Only
in the said extent of the land, the defendant had been running a saw mill
before constructing the present building in the suit property;
(d) P.W.1 has also admitted during his cross examination that only
by removing the said tiled shed, the defendant had put up the building in
the suit property;
(e) Admissions made by the plaintiff P.W.1, during his cross-
examination would prove the fact that abutting the northern wall of the
plaintiff's house, the defendant had been running a saw mill in a tiled
shed, which has its support in the kavanjaly placed on the northern wall
of the plaintiff's house. The same is reflected in the sale deed of the
defendant dated 02.12.1983 (Ex.B1);
(f) House tax receipts filed by both parties would also prove that
the properties are lying adjacent to each other;
(g) The plaintiff has filed Ex.A9, house tax receipt, in which
survey number was mentioned as 159 in one receipt and in another
receipt, it is mentioned as 159/A;
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
(h) The defendant has filed Ex.B4, series of tax receipts. In some
tax receipts, door number is mentioned as 159 and in some other tax
receipts, door number is mentioned as 159/B;
(i) Thus, after considering the house tax receipts produced by the
plaintiff and the defendant, it shows that the plaintiff's property and the
defendant's property were earlier bearing the same door number, but later,
it has been separated as door numbers, namely, 159A and 159B
respectively.
(j) A perusal of the Advocate Commissioner's report and plan
would go to show that the suit property is lying in the center being
sandwiched between the property of the Murugaboopathy belonging to
Vaduga Pandaram Madam and Nandavanam and the plaintiff's property;
(k) The plaintiff (P.W.1) has admitted that only between
Murugaboopathy's property and his house, the defendant was running a
saw mill in a tiled shed and after removing the said tiled shed, the
defendant has now put up a new construction. If the said claim of the
plaintiff is correct, there is no possibility at all for the defendant to have a
saw mill in between the property of the plaintiff and Murugaboopathy.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
(l) the claim of the defendant that he was running a saw mill in the
tiled shed that has its support on the kavanjaly placed on the northern
wall of the plaintiff is confirmed by Ex.B4 series of house tax receipts;
(m) The Advocate Commissioner has also specifically observed in
his report that there were kavanjalies in the northern wall of the plaintiff's
house. The said observation of the Advocate Commissioner only
supports the case of the defendant that the northern wall of the plaintiff's
house is a common wall;
(n) The evidence available on record would prove that there was a
tiled shed immediately abutting the northern wall of the plaintiff's house,
with the support of kavanjaly placed on the northern wall, which bears
the door number 159B and in the said tiled shed alone, the defendant was
running a saw mill;
(o) The town survey was made long time back and as per the town
survey, the suit property is a portion lying in T.S.No.52, whereas the
plaintiff's property is exclusively situated in T.S.No.53. Therefore, the
plaintiff cannot make any claim in respect of the suit property, which is
lying in T.S.No.52. The town survey was settled even during the period
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
of the plaintiff's father and his father had restricted his claim only with
respect to T.S.No.52.
(p) Only in respect of T.S.No.51/2, the name of Meyappa Chettiar
and his predecessor in title was found entered and not in T.S.No.52 and
therefore, it is clear that taking into account the measurement in Ex.A1,
the plaintiff is making a false attempt by claiming title over the suit
property, which is situated in T.S.No.52;
(q) The defendant has established his title over the suit property by
virtue of the sale deed dated 02.12.1983 (Ex.B10);
(r) Apart from the aforementioned findings of the trial Court, this
Court after giving due consideration to other exhibits marked on the side
of the defendant, namely house tax receipts, electricity bills, receipts for
payment of fee for building licence and building development, which
have been marked as exhibits, it is clear that the plaintiff has got no legal
right over the suit property and it is only the defendant, who is having
right over the same.
12. The trial Court, only based on the pleadings and oral and
documentary evidence available on record has rightly dismissed the suit
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
filed by the plaintiff by its Judgment and decree dated 19.11.2013 in
O.S.No.9 of 2010. Aggrieved by the same, the plaintiff had filed a first
appeal before the Sub Court, Sivagangai in A.S.No.1 of 2014. The lower
appellate Court has also rightly confirmed the findings of the trial Court
by dismissing the first appeal filed by the plaintiff.
13. This Court, on 03.03.2017 admitted the Second Appeal by
formulating the following substantial questions of law:
"(a) Whether the interpretation of Courts
below with regard to the documents in Exs.A.1 and
A.5 sale deeds are correct?
(b) Whether the Courts below were right in
ignoring Ex.C.1 Commissioner's report and plan
which prove the case of the plaintiff with regard to
the prayer for recovery of possession and
mandatory injunction?''
14. Admittedly, the suit schedule property is situated in T.S.No.52.
The plaintiff has not produced any revenue records to show that he is
entitled for legal possession of the suit property. The sale deed standing
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
in the name of the plaintiff also does not reveal that the plaintiff is having
a right over T.S.No.52, where the suit property is situated.
15. The trial Court as well as the lower appellate Court has rightly
appreciated the documents filed by the plaintiff, which were marked as
Exs.A1 to A10 and has rightly rejected the plaintiff's claim, as he has
miserably failed to prove that he has right over the suit property. The
Advocate Commissioner's report, plan and the photographs, which have
been marked as Court exhibits, namely Exs.C1 to C3 have been rightly
appreciated by the Courts below, as the plaintiff has not been able to
prove his case that the defendant has encroached upon his property,
whereas the defendant has put up a new construction only in his property
comprised in T.S.No.52, after demolishing the existing saw mill.
Therefore, the substantial questions of law formulated by this Court,
while admitting the Second Appeal are answered against the plaintiff by
holding that the Courts below have rightly dismissed the suit filed by the
plaintiff. There are no debatable issues of fact or law involved for further
consideration by this Court under Section 100 of C.P.C.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
16. In the result, there is no merit in this second appeal and
accordingly, this Second Appeal is dismissed. There shall be no order as
to costs. Consequently, connected Miscellaneous Petition is closed.
27.04.2023
Index : Yes / No
NCC : Yes / No
Sm
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
TO:
1.The Sub Court, Sivagangai.
2.The District Munsif, Sivagangai.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.133 of 2017
ABDUL QUDDHOSE, J.
sm
Judgment made in
S.A.(MD)No.133 of 2017
Dated:
27.04.2023
https://www.mhc.tn.gov.in/judis
