Madras High Court
Sundaram Mudaliar vs Mangayarkarasi ( Deceased) on 7 December, 2023
SA.No.509 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.12.2023
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.No.509 of 2011
and
M.P.No.1 of 2011
Sundaram Mudaliar ... Appellant
- Vs -
1. Mangayarkarasi ( deceased)
2. Saraswathi
3. Loganathan
4. Kanakavalli
(R2 to R4 brought on record as legal
heirs of the deceased sole respondent
vide Order of this Court dated 30.01.2017
made in C.M.P.Nos.20192 to 20194 by TRNJ)
... Respondents
Second Appeal is filed under Section 100 of the Civil Procedure Code
against the Judgment and decree dated 25.11.2008 passed in A.S.No.23 of
2004 by the learned Subordinate Judge at Madurantakkam, Kanchipuram
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1/9
SA.No.509 of 2011
District, confirming the decree and Judgment dated 05.06.2004 passed in
O.S.No.314 of 1996 by the learned District Munsif, Maduranthakkam,
Kanchipuram District.
For Appellant : Mr. N. Nagu Sah
For Respondents 2 to 4 : Mr.C.Vigneshwaran for
Mr.K. Govi Ganesan
Respondent -1 : died
JUDGMENT
The instant second appeal has been filed at the instance of the
plaintiff. The respondents 2 to 4 herein are the legal heirs of the deceased
first respondent who was the sole defendant before the Trial Court.
2. For the sake of convenience, the parties will be referred according
to their litigative status before the Trial Court.
3. The brief facts, which give rise to the instance second appeal are as
follows:
The suit schedule properties absolutely belongs to the plaintiff and that
the plaintiff' has been in possession and enjoyment of the same continuously
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for the past more than 40 years by paying necessary kists. The patta was also
issued in the name of the plaintiff. The plaintiff prescribed title by adverse
possession. The defendant has no right or title over the suit properties. The
defendant purchased some land on the eastern side of the first item and on
the western side of the second item of the suit properties by virtue of the sale
deed dated 26.03.1992. In which the suit properties were shown as
boundaries. Taking vengeance against the plaintiff, the defendant was
deliberately trying to trespass into the suit properties. Hence, the plaintiff
came forward with the suit to declare his right and title and to direct the
defendant to deliver the possession of the suit properties.
4. The said suit was resisted by the defendant by contending that the
father of the plaintiff one Mr.Govindaraja Mudaliar, his another son by name
one Mr.Vijayaranga Mudaliar and his father's younger brother one Mr.Kasi
effected partition under an unregistered koorchit dated 29.11.1945, the
original of which is with the plaintiff. In the said partition the said
Mr.Govindaraja Mudaliyar was allotted 0.67 cents in Survey No.315/2B( I
item) and 0.75 acres in Survey No.313/1(II item). The description of the
properties and boundaries were incorrect and misleading, that she had been
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in enjoyment of the western half of the property in Survey No. 315/2B and
Survey No.313/1, that the plaintiff has been in enjoyment of the eastern half
in those two survey nos, that the plaintiff was not entitled for permanent
injunction, that the plaintiff' had no title or possession either on the date of
the suit or 12 years earlier to the suit and that the plaintiff would not be
entitled for the relief of declaration.
5. Before the Trial Court, the plaintiff' examined himself as P.W.1
apart from two other witnesses as P.W.2 and P.W.3, marked 9 documents as
Ex.A1 to Ex.A9. On behalf of the defendant, four witnesses were examined
as D.W.1 to D.W4 and five documents were marked Ex.B1 to Ex.B5.
6. After having considered the oral and documentary evidence, the
Trial Court found that the plaintiff has not submitted the relevant records to
prove his possession and more particularly the koorchit. The Trial Court
also found that the plaintiff had not established his possessory title for
adverse possession and ultimately dismissed the suit. In respect of
injunction, the plaintiff admitted that the defendant had forcefully took
possession of the suit properties and subsequently sought for a prayer for
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recovery of possession. However, the Trial Court, as the plaintiff's title was
not established, declined the relief of recovery of possession.
7.Aggrieved by the Judgment of the Trial Court, the plaintiff
approached the First Appellate Court by filing an appeal. The First Appellate
Court also found that though the plaintiff, pleaded that he has been in
possession of the suit properties for more than 40 years, he was not in a
position to submit the relevant revenue records for the said 40 years period
and that he had not established his title over the properties, which, according
to the plaintiff was based upon the partition. Thus, the First Appellate Court
concurred with the findings of the Trial Court and dismissed the appeal.
8. Heard the learned counsel for the appellant and the learned counsel
for the respondent 2 to 4.
9. The learned counsel for the appellant would submit that the Trial
Court erred in dismissing the plaintiff's suit for declaration of title, in its
entirety, even though the defendant herself admitted that she had purchased
only 50% in S.No i.e 37.5 cents and the remaining 50% was owned by the
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plaintiff. It was also contended by the learned counsel for the appellant that
the defendant had only purchased the share allotted to the plaintiff's brother.
However, the Trial Court as well as the First Appellate Court, without any
evidence, has stated about the oral partition.
10. The sum and substance of the contention raised by learned counsel
for the appellant is that the Trial Court as well as the First Appellate Court,
without properly going through the plaintiff's evidence, wrongly dismissed
the suit.
11. However, the learned counsel for respondents 2 to 4 would
strongly object to the contention made by the appellant' by submitting that
the findings recorded by both the Court below were based on material
evidence. Hence, he prayed to dismiss the second appeal.
12. This Court has given its anxious consideration to either side
submissions.
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13. From the plaint avernments, the main contention put fourth by the
plaintiff is that he is the absolute owner of the suit properties. The suit
properties consist of S.F.No.315/2B of an extent of 33 1/2 cents and
S.F.No.313/1 of an extent of 75 cents. The Trial Court found that
patta/Ex.A1 and Chitta/Ex.A6 stand in the name of the plaintiff and his
brother Vijayrangan jointly. The Trial Court also found that Exs.A2 to
A5/kist receipts were obtained subsequent to the filing of the suit. Trial
Court further found that the plaintiff categorically admitted that he derived
the property by virtue of a oral partition,. Evidencing such oral partition,
they executed a koorchit. Therefore, it is incumbent upon the plaintiff to
produce such document to establish his title over the property. Therefore, it
was the finding of the Trial Court, which was subsequently confirmed by the
First Appellate Court that the plaintiff has not proved his right or title over
the property by producing any relevant accessible documents.
14. However, the plaintiff has also taken inconsistent pleading of
adverse possession. Admittedly, on seeing the plaint averments, there is no
pleading so as to establish the essential requirement of nec vi, nec clam, nec
precario.
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15. Both the Courts below held that the plaintiff has not established
his animus possidendi for a continuous statutory period and found that the
plaintiff' has not established his title even by adverse possession. The
findings recorded by both the Court below are based upon the evidence
available on record. Further, from the submissions made by the learned
counsel for the appellant, this Court could not find any material to deviate
from the said findings. Thus, this Court hold that there is no substantial
question of law arising for consideration in the second appeal.
16. In the result this second appeal is dismissed. No costs.
Consequently the connected miscellaneous petition is closed.
07.12.2023
smn
To
1.The Principal District Judge at Pondicherry
2. The Principal Sub Judge at Pondicherry
C.KUMARAPPAN, J
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smn
and
07.12.2023
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