Madras High Court
M.A.Mohamed Ghouse vs Muthuperumal on 9 January, 2023
S.A.No.1076 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.01.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.1076 of 2022
M.A.Mohamed Ghouse .. Appellant
Vs.
1. Muthuperumal
2. Amutha
3. Sheik Masthan .. Respondents
Prayer:- Second Appeal filed under Section 100 of CPC to allow the appeal
and set-aside Judgment and Decree dated 27.01.2021 made in A.S.No.44 of
2019 passed by the Learned Subordinate Judge, Chidambaram, confirming the
Judgment and Decree dated 18.07.2018 made in O.S.No.42 of 2008 passed by
the Learned Principal District Munsif cum Judicial Magistrate, Portonovo.
For Appellant : Mr.S.Sathish Rajan
JUDGMENT
This second appeal has been filed as against the Judgment and Decree
dated 27.01.2021 made in A.S.No.44 of 2019 passed by the Learned
Subordinate Judge, Chidambaram, confirming the Judgment and Decree dated
18.07.2018 made in O.S.No.42 of 2008 passed by the Learned Principal District
Munsif cum Judicial Magistrate, Portonovo, thereby dismissed the suit.
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S.A.No.1076 of 2022
2. The appellant is the plaintiff and the respondents are the defendants.
The appellant filed a suit in O.S.No.42 of 2008 for declaration and injunction in
respect of the suit properties. The case of the plaintiff is that the plaintiff and
the first defendant are brothers. The second defendant is the wife of the first
defendant. There are other brothers in their family. As per the family
arrangements, the plaintiff was allotted 25 cents under the registered sale deed
dated 03.07.1990 and the second defendant was gifted with 25 cents by way of
a gift deed. During the month of January 2008, the second defendant proposed
to sell some portion of the first defendant's property. At that juncture, it was
informed by the surveyor that the survey numbers of the properties of the
plaintiff and the first defendant are not correct and there are mistakes in survey
numbers. Therefore, the plaintiff and the first defendant had realized the
mistake in survey numbers and agreed to correct the survey numbers. However,
they wanted to sell 9 cents each. The document dated 22.01.2008 was also
entered into in writing. However, it was not a registered, due to the plaintiff's
health condition. From the date of the sale deed, i.e, 03.07.1990, the plaintiff is
in possession and enjoyment of the property.
3. On the other hand, the respondents resisted the same, by way of filing
written statement stating that the entire claim of the appellant is deliberately
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S.A.No.1076 of 2022
wrong. The properties comprised in Survey No.93/1, 93/2, 93/3, 93/4 and
93/6A, ad-measuring 25 cents were gifted to the second defendant, who is the
vendor of the first respondent herein by the second defendant's brothers
including the appellant herein, on 03.07.1996, thereby identified the properties
with survey numbers and as such the appellant cannot claim now that he is
having 25 cents share as per the boundaries. As per the plaint, the western
boundary of S.No.96/6A is not a road and that the mistake would be in
plaintiff's sale deed which was marked as Ex.A1 and not in the second
defendant's gift deed, which was marked as Ex.B1.
4. On the side of the appellant, he had examined P.Ws.1 to 3 and marked
Exs.A1 to 5. On the side of the respondents, they had examined D.Ws.1 and 2
and marked Exs.B1 to 11. On a perusal of oral and documentary evidences, the
Trial Court dismissed the suit. Aggrieved by the same, the appellant filed an
appeal and the same was also dismissed confirming the Judgment and Decree
passed by the Trial Court. Hence, this second appeal.
5. The appellant raised the following substantial questions of law:-,
“ a) Whether the principles of boundaries will prevail
over the Survey Numbers is applicable to the facts and
circumstances of the subject matter of the suit in O.S.No.42 of
2008 ?
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S.A.No.1076 of 2022
b) Whether the Plaintiff have proved his title and
possession over the suit property by way of Revenue Records ?
c) Whether the plaintiff have perfected title to the suit
property by way of Adverse Possession ?
d) Whether the possession of the Plaintiff is open, hostile
and adverse to the interest of the defendant over the suit
property for well over the statutory period ?
e) Whether the Exchange Deed Ex.A2 is a genuine and
true document ?
f) Whether the Defendant is estopped from denying the
Right, Title and Possession of the Plaintiff in view of Ex.A2 ?”
6. The learned counsel for the appellant would submit that in fact, the
second respondent herein categorically admitted that there was mistake in
survey numbers. Though, the exchange deed was executed between them, the
same was not registered for the reason that the plaintiff had fell ill. In fact, the
possession and enjoyment of the suit property is not denied by the respondents
herein. The patta in respect of the suit properties stands jointly in the name of
the appellant and the respondents. As per the boundaries, the appellant is in
possession and enjoyment of the suit property.
7. A perusal of records revealed that the description of the suit properties
as per the sale deed dated 03.07.1990 and the description given in the suit are
different. According to the appellant, he is in possession and enjoyment of the
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S.A.No.1076 of 2022
properties ad-measuring 25 cents comprised in S.Nos.93/6A, 93/3, 93/5A and
93/4 out of 48 cents, as per the sale deed dated, dated 03.07.1990, which was
marked as Ex.A1. Accordingly, the total land comprised in S.No.93/6A is 48
cents. The respondents had marked Ex.B6, the computerized patta. It revealed
that S.No.93/6A ad-measuring 20 ares, which is equivalent to 49 cents and it is
owned by five persons, including the appellant herein. The property comprised
in S.No.93/3, ad-measuring 2 ares, which is equivalent to 5 cents. Whereas, the
property comprised in S.No.93/4 having extent of 1.5 ares, which is equivalent
to 3¾ cents. Both the measurements are different. Therefore, the property
description mentioned in the plaint is completely wrong. The further stand of
the appellant is that he had taken an effort to exchange 9 cents of property with
the second defendant. If at all the mistake is only with respect to survey
numbers, proper course would be to rectify the mistake by way of execution of
rectification deed. However, the appellant had executed an exchange deed with
the second defendant. It has nothing to do with the suit property. It was not a
registered one. The un-registered exchange deed was marked as Ex.A2 and it is
an invalid document as contemplated under Section 17 of the Registration Act,
1908.
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S.A.No.1076 of 2022
8. Therefore, both the Courts below rightly dismissed the suit and this
Court finds no substantial questions of law involved in this case and the second
appeal is liable to be dismissed.
9. Accordingly, this Second Appeal is dismissed. No costs.
09.01.2023
(½)
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
mn
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S.A.No.1076 of 2022
G.K.ILANTHIRAIYAN,J.
mn
To
1. The Subordinate Judge, Chidambaram.
2. The Principal District Munsif cum Judicial Magistrate, Portonovo.
S.A.No.1076 of 2022
09.01.2023
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