Madras High Court
S.T.M.Mohammed Gani vs B.Muthu Naidu (Died) on 1 December, 2023
S.A.No.655 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.655 of 2017
1.S.T.M.Mohammed Gani
2.S.T.M.Jainulupdheen ... Appellants
vs.
1.B.Muthu Naidu (Died)
2.Sarojini
3.Sathiya
4.Sivakumar
5.Jeeva
6.Tamilselvan
7.Meyyazhagan ... Respondents
(R1 Died, RR3 to 7 are brought on record as LR's of
the deceased R1 vide Court Order dated 17.11.2023
made in CMP.No.11373/2023 in SA.No.655/2017)
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the judgement and decree in A.S.No.13 of 2013 on the
file of the II Additional Subordinate Judge, Villupuram dated 04.11.2015
partly reversing the judgment and decree in O.S.No.165 of 2003 on the file
of I Additional District Munsif Cum Judicial Magistrate No. 1, Ulundurpet
dated 28.01.2010.
For Appellants : Mr.K.Muthukumarasamy
For R2 to R7 : Ms.R.Meenal
1/8
https://www.mhc.tn.gov.in/judis
S.A.No.655 of 2017
JUDGEMENT
The plaintiffs in a suit for declaration of title and injunction are the
appellants. The suit was dismissed by the Trial Court and the appeal filed by
the appellants/plaintiffs was partly allowed by the First Appellate Court and
suit was decreed in respect of property covered under Ex.A1 alone. In
respect of remaining portion of suit property, the suit was dismissed by the
First Appellate Court. Aggrieved by the dismissal of the suit in respect of
the property not covered under Ex.A1, the plaintiffs have come by way of
this second appeal.
2. According to the appellants/plaintiffs, the suit property originally
belongs to one Jeyarama Naidu. The 1st appellant purchased a portion of the
suit property from said Jeyarama Naidu under Ex.A1 dated 22.02.2002. The
remaining portion of the suit property was purchased by 2nd appellant on
26.03.2002 from the very same Jeyarama Naidu. It was the case of the
appellants that they had been in possession and enjoyment of the suit
property from the date of purchase. It was also claimed by the appellants
that the right claimed by respondents/defendants in respect of 1 cent of the
https://www.mhc.tn.gov.in/judis
suit property on the western side under the gift deed executed by Jeyarama
Naidu was untenable as he himself cancelled the settlement subsequently. It
was further alleged by the appellants that respondents illegally attempted to
interfere with their alleged possession and therefore, they were constrained
to file a suit for declaration of title and injunction.
3. The respondents 1 and 2 herein filed a written statement and
resisted the suit on the ground that Jeyarama Naidu owned 2 cents of land in
Survey No.108/1 situated at Jubilee Street, U.Keeranur Village,
Ulundurpettai Taluk and he executed a Settlement Deed dated 30.04.1977
settling 1 cent on the western half in favour of the respondents. Thus, from
the date of settlement onwards, the respondents had been in possession and
enjoyment of the suit property. It was also claimed by the respondents that
in the year 1989, a thatched house that stood in the western half of the suit
property got destroyed and as on today, the western half had been enjoyed
by the respondents as a vacant site. It was also claimed by the respondents
that in the sale deed executed by the said Jeyarama Naidu in favour of the 1st
appellant in respect of the portion of the suit property retained by him, the
said Jeyarama Naidu clearly described the property settled in favour of the
https://www.mhc.tn.gov.in/judis
defendants as the western boundary of the property conveyed to the 1st
appellant. Therefore, the respondents sought for dismissal of the suit.
4. On these pleadings, the parties went to trial and the Trial Court
based on the oral and documentary evidence available on record, came to
the conclusion that the Jeyarama Naidu had no right to cancel the settlement
made by him in favour of respondents. The Trial Court also found that the
appellants failed to prove their claim and consequently, the suit is dismissed
in its entirety. Aggrieved by the same, the appellants preferred an appeal in
A.S.No.13 of 2013 on the file of the II Additional Subordinate Judge,
Villupuram. The First Appellate Court also found that Jeyarama Naidu after
settling the western half of the suit property to the respondents, had no right
to cancel the same under Ex.A3 and therefore, the sale deed executed by the
said Jeyarama Naidu under Ex.A2 in favour of 2nd plaintiff in respect of
western half of the suit property was not valid. As far as property conveyed
by Jeyarama Naidu under Ex.A1 to 1st plaintiff, the First Appellate Court
found the same was not in serious dispute, therefore, the appellants entitled
to seek for declaration and injunction in respect of the property covered
under Ex.A1 alone. The dismissal of the suit in respect of remaining extent
https://www.mhc.tn.gov.in/judis
of the suit property was confirmed. Aggrieved by the said judgement and
decree, the appellants have came by way of this second appeal.
5. The learned counsel appearing for the appellants submitted that the
Settlement Deed said to have been executed by Jeyarama Naidu under
Ex.B1 dated 30.04.1977 was not at all acted upon and the respondents failed
to take possession in pursuance of the Settlement Deed. Therefore, the said
Jeyarama Naidu was justified in cancelling the gift deed, which never came
into effect. In this connection, the learned counsel for the appellants pressed
into service the decision of this Court in Kali Naicker vs. Jeganathan
reported in 2013 (1) CTC 318.
6. The Courts below on perusal of Ex.B1-Settlement Deed executed
by Jeyarama Naidu in favour of respondents and oral evidence let in by the
parties, came to the conclusion that 1 cent of the property being western half
of the suit site was settled by Jeyarama Naidu in favour of the respondents
on 30.04.1977. It was the specific case of the appellants that said Settlement
Deed was not acted upon and therefore, the gift deed never came into effect
and consequently, the Settlor was justified in cancelling the Gift Deed.
https://www.mhc.tn.gov.in/judis
However, in subsequent sale deed executed by Jeyarama Naidu in favour of
the 1st appellant in respect of the remaining portion of property retained by
him, he clearly admitted the possession of the respondents over the property
settled to them under Ex.B1. In the boundary description found in Ex.A1-
Sale Deed executed in favour of the 1st appellant, the western boundary of
the property covered under the said document was mentioned as 'Kj;J eha[L
kidf;F fpHf;F' (East of Muthu Naidu's site). Therefore, it is clear Jeyarama
Naidu himself admitted effective possession of the respondents in a
subsequent registered document executed by him under Ex.A1.
7. In such circumstances, the contention raised by the appellants that
gift deed executed by Jeyarama Naidu was not acted upon and the
respondents had never taken possession of the said property by accepting
the gift is not acceptable to this Court. Once this Court comes to the
conclusion there is evidence available on record to show that the property
settled under Ex.B1 was taken possession by the Settlee and his possession
was admitted by Settlor himself in a subsequent document, the case law
relied on by the learned counsel for the appellants would not advance his
case.
https://www.mhc.tn.gov.in/judis
8. Both the Courts below by rightly appreciating the boundary
description in Ex.A1, came to the conclusion that the gift deed executed by
Jeyarama Naidu was acted upon and therefore, he was not entitled to cancel
the gift deed unilaterally and thereafter, convey the subject matter of gift
deed to the 2nd plaintiff under Ex.A2. Therefore, the conclusion reached by
the First Appellate Court that plaintiffs are not entitled to declaration of title
and injunction in respect of the portion of the suit property not covered by
Ex.A1 is confirmed and the second appeal stands dismissed.
In Nutshell:-
(i) The Second Appeal is dismissed.
(ii) In the facts and circumstances of the case, there shall be no order
as to costs.
01.12.2023
Index : Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No
dm
https://www.mhc.tn.gov.in/judis
S.SOUNTHAR, J.
dm
To
1.The II Additional Subordinate Judge,
Villupuram.
2.The I Additional District Munsif
Cum Judicial Magistrate No. 1,
Ulundurpet.
01.12.2023
https://www.mhc.tn.gov.in/judis
