Madras High Court
Chinnarasu @ Ramachandran (Died) vs Karthikeyan (Died) on 5 January, 2023
S.A.No.805 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.805 of 2005
1.Chinnarasu @ Ramachandran (died)
2.Valarmathi
3.Santha
4.Meena
5.Revathy
6.Kumari
7.Minor Latha (Major)
8.Minor Murugan (Major) ...Appellants/Appellants/
Defendants 1, 3 to 9
Vs.
1.Karthikeyan (died)
2.Govindammal (died)
3.C.Murugan
4.S.Vijayalakshmi
5.T.Ambika
6.D.Padmavathy
7.Senthilkumaran
8.S.Shanthi ...Respondents/Respondents/
Plaintiffs
1/16
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S.A.No.805 of 2005
(Appellants 7 and 8 declared as major and discharged guardianship
vide Court order dated 08.12.2021 in C.M.P.No.19227 and 19230 of
2020 in S.A.No.805 of 2005 by JNBJ)
(Respondents 3 to 5 brought on record as legal representatives of the
deceased 2nd respondent vide orders of this Court dated 05.03.2013 in
C.M.P.Nos.152 to 154 of 2010 in S.A.No.805 of 2005)
(Respondents 6 to 8 brought on record as legal representatives of the
deceased 1st respondent vide orders of this Court dated 01.10.2019 in
C.M.P.Nos.12695, 12608 and 13178 of 2019 in S.A.No.805 of 2005 by
PRMJ)
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 08.09.2004 in
A.S.No.24 of 2004 on the file of the learned Additional District Judge,
Fast Track Court No.II, Cuddalore, confirming the Judgment and
Decree dated 07.03.2003 in O.S.No.268 of 1996 on the file of the
learned Additional District Munsif, Cuddalore.
For Appellants : Mr.A. Nilopher
For Respondents : Mr.S.Kingston Jerold
for R3 to R8
R1 and R2 – died
2/16
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S.A.No.805 of 2005
JUDGMENT
The defendants are the appellants before this Court. The appeal
is filed challenging the Judgment and Decree in A.S.No.24 of 2004
passed by the learned Additional District Judge, Fast Track Court
No.II, Cuddalore, in and by which the learned Judge had confirmed the
Judgment and Decree passed by the learned Additional District Munsif,
Cuddalore, in O.S.No.268 of 1996.
2.The facts which have resulted in the filing of the above Second
Appeal are hereinbelow set out and the parties are referred to in the
same litigative status as in the Original Suit:
The plaintiff had filed the suit O.S.No.268 of 1996 seeking a
declaration of the plaintiffs' title to the suit property and for an
injunction. This was subsequently amended as one for recovery of
possession pending the suit since, according to the plaintiff, the
property has been trespassed into by the defendants. It is the case of
the plaintiffs that the suit schedule property belonged to one Damodara
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S.A.No.805 of 2005
Gounder, the father of the plaintiffs under a registered Sale Deed dated
25.03.1963. The plaintiffs had pleaded that the original Sale Deed was
lost and therefore, they filed a registration copy of the same. They
would contend that from the date of purchase, the plaintiffs' father
Damodara Gounder has been in possession and enjoyment of the suit
schedule property. The said Damodara Gounder died in the year 1975
and after his death, the plaintiffs had inherited the suit property
consisting of bore well with an electric motor. The property was also
assessed service connection which stood in the name of the plaintiffs'
father and the electricity service connection was an agricultural service.
After the death of their father, the plaintiff and his sister Adhilakshmi
had inherited the same. The said Adhilakshmi died in the year 1986
and the plaintiff alone as the legal representative is entitled to the
property. The defendants who are sons of their aunt (the plaintiff's
paternal aunt) were assisting the 1st plaintiff in the agricultural
operations. In due course, the defendants requested the plaintiffs to
lease out the property to them which request was turned down by the
plaintiffs. Enraged by the same, the defendants who were residing
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S.A.No.805 of 2005
close to the suit Village had attempted to trespass into the suit property
on 11.02.1996. This attempt was prevented and the plaintiffs fear that
they would take forcible possession of the property. Therefore, the suit
was filed for the original relief. When the suit was pending the
defendants have trespassed into the property and therefore, the plaintiff
had amended the Plaint.
3.The defendants had originally filed a Written Statement inter
alia contending that the purchase in the name of Damodara Gounder,
the father of the plaintiffs was a benami one. The plaintiff's father
Damodara Gounder and Ammakannu Ammal, the mother of the
defendants are siblings. Perumal is the father of the defendants. The
defendants had two other brothers, namely, Sarangapani and
Venkatesan. The defendants would contend that the suit property
belonged to their father Perumal Gounder who was a spendthrift. When
Muthunarayana Reddiar offered to sell the property the said
Ammakannu Ammal decided to purchase the property in the name of
her brother Damodara Gounder since she apprehended that Perumal
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S.A.No.805 of 2005
Gounder will not retain the property. However, it was to Perumal that
possession of the property was handed over by the Vendor. The
defendants would submit that the original Sale Deed was not lost but is
in possession of the defendants. Therefore, the contention of the
plaintiffs that the original Sale Deed is lost is false. The revenue
records stood in his name and he has been remitted the revenue and the
current consumption charges. Just prior to the death, Perumal Gounder
divided the property amongst his four sons, namely, Chinnarasu @
Ramachandran, Adhikesavan, Sarangapani and Venkatesan.
Sarangapani and Venkatesan were given the bore set each and the
defendants who are the third and fourth sons were given the suit
property and possession was also delivered to them. This had happened
a year prior to the death of Perumal Gounder. The said Perumal
Gounder died in the year 1994 and the division was effected in the year
1973. The defendants would submit that they have been in absolute
possession and enjoyment of the property for over 23 years and
therefore, they had prescribed absolute title to the properties. The suit
was only the result of the enemity between Venkatesan, the elder
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S.A.No.805 of 2005
brother of the defendants and the defendants. The defendants would
contend that the said Venkatesan has instigated the plaintiff to file the
suit.
4.After the amendment, the defendants had filed an Additional
Written Statement wherein they had contended that they have never
trespassed into the suit properties since there is no necessity to trespass
as they were in possession of the property from 1963. The defendants
would submit that there is no question of delivering possession to the
plaintiffs.
5.The learned District Munsif had framed the following issues:
vGtpdhf;fs;:
"(1)tHf;F brhj;J Mjpapy; Kj;Jehuhaz
bul;oahUf;F ghj;jpakhdjh?
(2)ghfg;gphptpid K:yk; tHf;F brhj;jpy;
gpujpthjpfs; RthjPdj;jpw;F te;jhuh?
(3)tHf;F brhj;ij thjpfs; 28/03/1963y;
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S.A.No.805 of 2005
bgw;w fpuak; bry;yj;jf;fjh?
(4)thjpfs; tHf;F brhj;jpy; chpik
tpsk;g[if ghpfhuk; bgw chpatuh?
(5)thjpfspd; ghpfhuk; ahJ?"
TLjy; vGtpdh:
"vjph;thjpfs; TWtJ nghy; vjph;thjpfs;
jhth brhj;jpd; RthjPdj;jpYk; mDgtj;jpYk;
cs;stuh?"
6.The 1st plaintiff had examined himself as PW1 and one
Rajamanickam as PW2 and marked Ex.A.1 to Ex.A.9. The defendants
on the other hand had examined the 1st defendant as DW1 and 3 others
as DW2 to DW4. Ex.B1 to Ex.B.66 were marked to prove the case of
the respective parties.
7.The trial Court on considering the evidence and the arguments
held that the defendants had at no point of time challenged the right,
title or interest of the said Damodara Gounder to the suit schedule
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S.A.No.805 of 2005
property. However, once they have stated that Damodara Gounder did
not have any right, title or interest to the suit property they cannot set
up a case of adverse possession. Further, since there is no challenge to
the sale dated 25.03.1963 in the name of the plaintiff's father, it cannot
be held that the Sale Deed is not a valid one. Consequently, the
plaintiffs being the legal representatives of Damodara Gounder was
entitled to declaration and therefore, the plaintiff is entitled to recovery
of possession. Consequently, the trial Court had decreed the suit as
prayed for. Challenging the said Judgment and Decree, the defendants
had filed A.S.No.24 of 2004 on the file of the learned Additional
District Judge, Fast Track Court No.II, Cuddalore. The learned Judge
also confirmed the Judgment and Decree of the trial Court. Challenging
the said Judgment and Decree, the defendants are before this Court.
8.The Second Appeal has been admitted on the following
Substantial Question of Law:
“Whether in Law the Courts below are not wrong in
decreeing the suit when the appellants had been in open
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S.A.No.805 of 2005
hostile possession for well over four decades and had
prescribed for title by adverse possession.?”
9.Mr.A.Nilopher, learned counsel appearing for the appellants
would submit that the purchase of the property was a benami one in the
name of the plaintiff's father who is none else than the brother of the
defendants' mother since she had no confidence on her husband
Perumal who was a spendthrift. She would submit that though the
property was purchased in the name of Damodara Gounder, the original
Sale Deed and the documents of title remained only with their mother
Ammakannu Ammal. She would further submit, that all the
documents, namely, the kist receipts and the house tax receipts are
being remitted only by the defendants, no doubt, in the name of the
father of the plaintiffs. This would clearly show that they are in
possession and enjoyment of the suit property. She would submit that
the sale was a benami sale. In support of the said arguments, she would
rely on the Judgment reported in (1974) 1 Supreme Court Cases 3
[Jaydayal Poddar (Deceased) through L.Rs. and another v.
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S.A.No.805 of 2005
Mst.Bibi Hazra and others] at Para 6. She would therefore submit
that the Courts below have not taken into account the circumstances
which would clearly show that the plaintiffs' father was merely a name
lender and that he had not contributed for the purchase of the property.
Therefore, the suit ought to have been decreed as prayed for.
10.Per contra, Mr.Kingston Jerold, learned counsel appearing for
the respondents 3 to 8 would submit that the original document had
been submitted before a Court since the plaintiffs' father stood as a
surety for the defendants in a Criminal case. He would further submit
that all documents only stand in the name of the plaintiffs' father and
not in the name of the defendants.
11.That apart, the defendants have not taken any steps to have
their right declared, though they have taken a defence that the property
was purchased benami. They have not even taken steps to file a Cross
Objections or Cross Appeal to have their right declare in respect of the
suit schedule property. He would submit that even the documents that
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S.A.No.805 of 2005
have been filed on the side of the defendants all stand in the name of
the plaintiffs' father which would clearly show that it is only the
plaintiffs who have right or title to the property. The defendants have
not been able to prove their independent right to the property and
therefore, the Judgment and Decree of the Courts below have to be
confirmed.
12.Heard the learned counsels appearing on either side and
perused the papers.
13.It is the case of the plaintiff that the suit schedule property
was purchased by their father Damodara Gounder on 25.03.1963 under
Ex.A.1. From the date of the said Deed, he was in possession of the
property till his death and thereafter, the plaintiffs are in possession of
the same. The defendants who have set up a plea that the property was
purchased benami in the name of Damodara Gounder has not taken any
steps to assert their rights as owners after the death of Damodara
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S.A.No.805 of 2005
Gounder. The revenue documents produced on the side of the
defendants stand in the name of Damodara Gounder.
14.On the contrary, DW2 in his cross examination has admitted
as follows:
",e;j tHf;F nghLk; tiu ehd; kw;Wk;
gp;s;isfs; ehy;tUk; v';fs; brhj;J vd;W
brhy;yp vGj;JK:ykhd chpik
bfhz;lhltpy;iy/"
He has further admitted in his cross examination as follows:
"96 tiu xj;jhir bra;J te;njhk;/
96y; jhd; Kjd; Kjypy; tpnuhjk;/"
He has also admitted that the patta stands in the name of Damodara
Gounder. Considering his admission that the defendants have been
assisting the appellants till the year 1996 only confirms the pleadings
of the plaintiffs that the defendants who have been put in possession of
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S.A.No.805 of 2005
the property for assisting the plaintiff in the agricultural operations are
setting up an independent claim.
15.That apart, the defendants have denied the title of the
plaintiffs' father to the property. Therefore, there is no question of
claiming adverse possession. The Substantial Question of Law is
answered against the defendants. The Courts below have correctly
gone through the evidence on record and decreed the suit. No grounds
have been made out for reversing the said findings or Judgment of the
Courts below.
This Second Appeal is dismissed, however, there shall be no
order as to costs.
05.01.2023
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
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S.A.No.805 of 2005
To
1.The Additional District Judge,
Fast Track Court No.II,
Cuddalore.
2.The Additional District Munsif,
Cuddalore.
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S.A.No.805 of 2005
P.T. ASHA, J,
mps
S.A.No.805 of 2005
05.01.2023
https://www.mhc.tn.gov.in/judis
