Madras High Court
Charles vs R.Subramani (Died) on 10 January, 2023
S.A(MD)No.126 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)No.126 of 2013
Charles ...Appellant
-Vs-
1.R.Subramani (died)
2.Selvaraj
3.Vellaiammal
4.Ponram
5.Manikumar
6.Gopinath ... Respondents
(Respondents 3 to 6 are brought on record as LRs of the
deceased first respondent vide Court order dated 21.12.2022
made in CMP(DM) No.920 of 2022)
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree passed in A.S.No.125 of 2010
dated 19.06.2012 on the file of the learned Principal Subordinate Judge, Dindigul
1/13
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S.A(MD)No.126 of 2013
reversing the judgment and decree passed in O.S.No.110 of 2006, dated
30.09.2010, on the file of the learned District Munsif, Nilakkotai.
For Appellant : Mr.N.Vallinayagam
For Respondents : Mr.H.Lakshmi Shankar
JUDGMENT
The defendant in the suit is the appellant. The respondents 1 and 2
herein filed a suit for declaration and injunction and the suit was dismissed.
Aggrieved by the same, the respondents 1 and 2 filed an appeal in A.S.No.125 of
2010 on the file of learned Principal Subordinate Judge, Dindigul and the same
was allowed in their favour. Challenging the said judgment and decree, the
defendant has come up by way of this second appeal. Pending the second appeal,
the first respondent died and his legal representatives were brought on record as
respondents 3 to 6.
2. According to the respondents 1 and 2/plaintiffs, the suit property was
originally belonged to one Mariappan, who purchased the same under a sale deed
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S.A(MD)No.126 of 2013
dated 18.01.1980, which was marked as Ex.A.1. The respondents 1 and 2/
plaintiffs purchased the suit property from the said Mariappan on 27.01.2006
under Ex.A.3. It was also stated by the respondents 1 and 2 in their plaint that the
property had been in possession and enjoyment of the respondents 1 and 2 and
their vendor with the patta in their name. The respondents 1 and 2 further averred
in the plaint that in the eastern portion of the suit property, the respondents 1 and
2 had raised Roja and on the western half, they raised Arali. It was further
averred that the appellant/defendant, without having any manner of right over the
suit property, tried to interfere with the possession of respondents 1 and 2 during
July-2006 and hence, they were constrained to file a suit for declaration of title
and for consequential injunction.
3. The appellant/defendant filed a written statement and resisted the suit
by mainly contending that the eastern half of Survey No.348/7, namely, the suit
property was purchased by him from the legal representatives of one Muthuram
under Ex.B.3, dated 14.06.2001. The said Muthuram in turn purchased the suit
property under Ex.B.2 dated 18.01.1980 from Palaniswamy and others. It is the
main contention of the appellant that though in his title document, the survey
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S.A(MD)No.126 of 2013
number of the property was mentioned as Survey No.348/9, in fact, he purchased
Survey No.348/8 and eastern half of Survey No.348/7. In other words, it is the
specific case of the appellant that though in the title document of respondents
1 and 2/plaintiffs, survey number was mentioned as 348/7, in fact, they purchased
only the property in Survey No.348/8 and western half of Survey No.348/7. It is
the contention of the appellant that from the date of purchase, he has been in
possession and enjoyment of eastern half of Survey No.348/7 and hence, prayed
for dismissal of the suit.
4. Before the trial Court, the first respondent was examined as P.W.1 and
14 documents were marked through him as Ex.A.1 to Ex.A.14. On behalf of the
appellant, he was examined as D.W.1 and one independent witness was examined
as D.W.2 and three documents were marked on the side of the appellant as Ex.B.1
to Ex.B.3.
5. The trial Court, on appreciation of evidence available on record, by
relying on certain statements made by P.W.1 in his cross examination, came to the
conclusion that the respondents 1 and 2/plaintiffs purchased only western half of
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S.A(MD)No.126 of 2013
Survey No.348/7 and the eastern half of Survey No.348/7, namely, the suit
property was purchased by the appellant and consequently, dismissed the suit.
Aggrieved by the same, the respondents 1 and 2 had preferred the first appeal in
A.S.No.125 of 2010, on the file of the Principal Sub Court, Dindigul. The First
Appellate Court reversed the findings of the trial Court and allowed the appeal.
Aggrieved by the same, the defendant is before this Court.
6. At the time of admission, this Court formulated the following
substantial questions of law:-
“1.Whether the Lower Appellate Court have failed to
note the well settled principle that the plaintiff has to stand on his
own legs?
2.Whether the lower appellate Court have failed to note
that the boundary prevails over the survey numbers when dispute
arose between the two?
3.Whether the lower appellate Court is correct in
reversing the clear finding of the trial Court that the plaintiff has
not proved his case?”
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S.A(MD)No.126 of 2013
7. The learned counsel for the appellant assailing the judgment passed
by the First Appellate Court contended that though in the title documents of the
respondents 1 and 2, namely, Ex.A.1 and Ex.A.2 the entire extent in Survey No.
348/7, was shown to be purchased by the respondents 1 and 2 and his vendor, in
fact, the respondents 1 and 2 purchased only the western half of Survey No.348/7
and the eastern half was purchased by the appellant. In support of his contention,
the learned counsel for the appellant had taken this Court to certain portion of
evidence of P.W.1 in his cross examination. The learned counsel also relied on
the report submitted by the Advocate Commissioner as if the eastern half is in
possession of the appellant and western half of Survey No.348/7 is in possession
of the respondents 1 and 2. The learned counsel elaborating the substantial
questions of law framed at the time of admission, submitted that in a suit for
declaration of title, the plaintiff has to win based on his own strength and he
cannot rely on the loopholes of the defendant. It is the submission of the learned
counsel that the respondents 1 and 2 as plaintiffs failed to prove that they
purchased entire extent of property in Survey No.348/7.
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S.A(MD)No.126 of 2013
8. Per contra, the learned counsel appearing for the respondents
submitted that the respondents 1 and 2/plaintiffs proved the title by producing
their title document Ex.A.3 and the parent document Ex.A.1. She also had taken
this Court to the evidence of D.W.1, where he categorically admitted that patta for
the suit property in Survey No.348/7 stands in the name of the respondents
1 and 2/plaintiffs and the same had not been objected to by him. The learned
counsel also referred to the admission of D.W.1 that in his title document, the
property was described as one acre and four cents in Survey No.348/9 and only
that property was purchased by him. The learned counsel further submitted that
the Advocate Commissioner cannot give any finding with regard to the
possession of the property and in the case on hand, the Advocate Commissioner
has recorded his opinion regarding the possession of the property and hence, the
First Appellate Court was right in rejecting the report and plan submitted by the
Advocate Commissioner and consequently, prayed for dismissal of the second
appeal by confirming the judgment and decree passed by the First Appellate
Court.
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S.A(MD)No.126 of 2013
9. Heard the arguments of the learned counsel for the appellant and that
of the learned counsel for the respondents. Perused the typed set of papers and
other records.
10. In a suit for declaration of title, the initial burden is heavily cast
upon the plaintiff. In the case on hand, the respondents 1 and 2/plaintiffs by
producing their title deed under Ex.A.3 and their parent document under Ex.A.1
along with patta for the suit property under Ex.A.2 and revenue documents like
chitta and adangal under Ex.A.5 and Ex.A9 to Ex.A.13, established their title and
possession over the suit property. The appellant has come up with the peculiar
defence that though under his title deed, he purchased one acre and four cents of
land in Survey No.348/9, in fact he purchased the eastern half of Survey No.348/7
along with southern portion of Survey No.348/9. When the appellant raises the
defence that the survey number and property description mentioned in his own
document are not correct, it is for him to substantiate the said plea. The appellant
failed to substantiate the said defence raised by him in his written statement by
leading any acceptable evidence. Though the appellant in his chief examination
stated that he purchased eastern half of Survey No.348/7, during his cross
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S.A(MD)No.126 of 2013
examination, he admitted that the patta for the entire Survey No.348/7 stands in
the name of respondents 1 and 2/plaintiffs and he had not made any objection
before the Revenue Authorities for issuing patta in the name of the respondents 1
and 2. In fact in the cross examination, the appellant admitted that he purchased
one acre four cents in Survey No.348/9 under Ex.B.3. Though in the title
document of the appellant, the property was described as one acre four cents in
Survey No.348/9, in the caveat application filed by the appellant under Ex.A.14
before the Court below, the Survey No.348/7 was added to the schedule.
However, the appellant is not in a position to say how Survey No.348/7 was
added in the schedule to the caveat application. D.W.1 also admitted the four
boundaries of his parent document and his property was described as the one
lying on the east of the property purchased by Mariappan, namely, the vendor of
the respondents 1 and 2. If the evidence of appellant as D.W.1 is considered as a
whole, it is clear that the respondents 1 and 2, after purchase, got the revenue
document mutated in their name and they have been in possession and enjoyment,
but the appellant failed to take any steps to rectify either his sale deed or the
revenue document in the name of the respondents 1 and 2.
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S.A(MD)No.126 of 2013
11. The learned counsel for the appellant by relying on certain
statements made by P.W.1 during his cross-examination with regard to the four
boundaries of the property, tried to argue that he purchased eastern portion of
Survey No.348/7. Though P.W.1 in his evidence deposed that on southern side of
Survey No.348/7, the property of Ammavasi and Velliram were situated, the said
boundary description does not tally with the southern boundary description
mentioned in appellant's title document, Ex.B.2. In the appellant's document, the
southern boundary is mentioned as the land belongs to Pommaiya Gounder and
Perumal. The learned counsel for the appellant submitted that the person
Velliram, referred to in the evidence of P.W.1, is the grandson of Pommaiya
Gounder. However, there is no evidence to support the said contention. Though
a suggestion made to P.W.1 that the said Velliram is the grandson of Pommaiya
Gounder, it was not accepted by him. Therefore, the contention made by the
learned counsel for the appellant based on the deposition of P.W.1, cannot be
accepted. As far as the Advocate Commissioner's Report and Plan are concerned,
it is settled law that Advocate Commissioner cannot give any opinion with regard
to the possession of the parties.
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S.A(MD)No.126 of 2013
12. In the case on hand, the Advocate Commissioner filed a initial report
as if the eastern portion of Survey No.348/7 was possessed by the appellant and
the western half was in possession of the respondents 1 and 2. Thereafter, on
objection filed by the respondents 1 and 2, the warrant was reissued and he filed
an additional report, wherein he had stated that it was not his opinion and it was
only the statement made by the parties. In the initial report filed by the Advocate
Commissioner, in Paragraph No.13, he had stated that the Surveyor after
measuring the property found that there was some encroachment by the appellant
into the land of the respondents. In the second report filed by him, he wanted that
the entire paragraph No.13 in his earlier report had to be deleted. However, he
had not assigned any reason for the same. Considering the discrepancy and
contradiction in the Advocate Commissioner's first report and second report, the
First Appellate Court has rightly rejected the Commissioner's report and plan.
13. In view of the discussions made earlier, the substantial questions of
law are answered against the appellant and the second appeal stands dismissed.
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S.A(MD)No.126 of 2013
14. In fine,
(i) The second appeal is dismissed by confirming the judgment and
decree passed in A.S.No.125 of 2010, dated 19.06.2012, on the file of the learned
Principal Subordinate Judge, Dindigul.
(ii) In the facts and circumstances of the case, there will be no order as
to costs.
10.01.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
cp
To
1.The Principal Subordinate Judge,
Dindigul.
2. The District Munsif, Nilakkotai.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.126 of 2013
S.SOUNTHAR, J.
CP
S.A(MD)No.126 of 2013
10.01.2023
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