Madras High Court
Krishnan (Died) vs Subramaniam (Died) on 23 January, 2023
SA.No.869 of 2001
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.01.2023
CORAM:
THE HON'BLE MS.JUSTICE P.T.ASHA
S.A.No.869 of 2001
1.Krishnan (Died)
2.K.Palani
3.Rajakumari ... Appellants
(appellants 2 & 3 are brought on
record as LRs of the deceased sole
appellant vide Court order dated
23.07.2019 made in CMP.No.825 to
827/2012 in S.A.No.869/2001)
Vs.
1.Subramaniam (Died)
2.Jayaraman
3.Sakthivel
4.Pachammal
5.Gunasekaran
6.Gunasundari
7.Senthamizhselvan
8.Amsalakshmi
9.S.Karthikeyan
10.S.Chandrakala
11.S.Minnal
12.S.Vijayamoorthy ... Respondents
(R1-died, RR4 to R12 brought on
record as legal heirs of the deceased
R1 vide Court order dated 13.09.2022
made in CMP.Nos.13929 to 13931/2022
in S.A.No.869 of 2001)
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1/12
SA.No.869 of 2001
PRAYER : Second Appeal filed under Section 100 of C.P.C., to allow
the appeal and set aside the judgment and decree in A.S.No.149 of 1996
on the file of the Sub-Court, Panruti.
For Appellants : Mr.R.Sunil Kumar
For Respondents : Mr.A.Saravanan for R2 to R12
R1-Died
JUDGMENT
The plaintiff is the appellant before the Court challenging the
judgment and decree passed by the Sub-Court, Panruti, in A.S.No.149 of
1996 in and by which, the learned Judge has reversed the judgment and
decree passed by the District Munsif Court, Panruti in O.S.No.117 of
1993.
2. The facts which form the basis for the filing of the appeal is
hereunder narrated and the parties are referred to with the same rank as
before the trial Court.
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SA.No.869 of 2001
3. The plaintiff had filed a suit in O.S.No.117 of 1993 for a
declaration of the plaintiff's title to the suit property and to pass a decree
for permanent injunction infavour of the plaintiff as against the
defendants and for injunction restraining the defendants from interfering
with the plaintiff's peaceful possession and enjoyment of the suit
schedule property.
4. It is the plaintiff's contention that the suit schedule property
belonged to one Chinnamuthu Padayachi. Chinnamuthu Padayachi had
five sons viz., 1) Natesa Padayachi, 2) Thangavel Padayachi, 3)
Arumugha Padayachi 4) Vadivel Padayachi and 5) Krishnan (Plaintiff).
The said Chinnamuthu Padayachi died 60 years prior to the filing of the
suit, leaving behind him, his wife and five sons. Thereafter, the wife of
Chinnamuthu Padayachi, Valliammal also passed away within few years
of her husband's death. The defendants 1 & 2 and one Ramalingam are
the sons of the elder son Natesa Padayatchi and third defendant is the son
of deceased Ramalingam. It is the case of the plaintiff that the suit
property and other property were divided amongst the sons of
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SA.No.869 of 2001
Chinnamuthu Padayachi in the year 1935, by way of an oral partition.
The suit property and other property came to be allotted to the share of
the plaintiff who has been in possession and enjoyment of the same. The
plaintiff would further submit that patta No.1876 stands jointly in the
names of K.Vadivel, C.Vadivel and T.Ramasamy and the plaintiff owns
only the suit property. The plaintiff would further submit that he has been
in possession of the properties since 1935 openly, continuously to the
knowledge of the defendants without any interception and therefore,
perfected title to the property by adverse possession. The defendants
have no semblance of the right over the title to the suit property. On
05.02.1993, the defendants attempted to forcibly enter into the property
which was suitably averted by the plaintiff and therefore, the plaintiff has
come forward with the suit in question.
5. The first defendant had filed written statement which is
adopted by the defendants 2 & 3 in which, they had inter alia denied the
claim of the plaintiff. The defendants admitted the oral partition, in
which the suit property, 1 acre of cashew nut grove and 1 acre of
cultivable lands were allotted to the father of the first defendant Natesa
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SA.No.869 of 2001
Padayachi. Likewise, the other sons of Chinnadurai were allotted 2 acres
of cashew nut grove and 1 acre of cultivable land in the oral partition.
The survey number of the suit property which stood in the name of the
first defendant property was S.No.676 and the old patta was No.251.
Thereafter 16 cents in S.Nos.676/1 was acquired for the Veeranam Canal
project and the award amount was received by the first defendant's father.
The remaining extent in S.No.676/2 stood in the names of the defendants'
father and one Padmavathiammal, after the re-survey in the year 1974,
the whole S.No.676/2 was clubbed with the new RS.Nos.544/8, 9, 10 &
544/10 which stood in the name of the plaintiff without enquiring the
defendants. The defendants would submit that he was often away from
the Village and taking advantage of the absence, the plaintiff has
connived with the revenue officials and got the patta granted in his name.
Prior to 1974, all the revenue records stood in the names of the
defendants' father. The defendants would submit that they have taken
steps to cancel the patta granted in the name of the plaintiff. Therefore,
they sought to have the suit dismissed.
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SA.No.869 of 2001
6. The learned District Munsif, Panruti had framed the
following issues:
1) Does the suit property belongs to the
plaintiff?
2) Is the plaintiff entitled to the reliefs of
declaration and injunction prayed for?
3) To what relief is the plaintiff entitled?
7. The plaintiff had examined himself as PW1 and one
Chinnadurai and Kuppusamy as PW2 & PW3 and marked Exs.A1 to A9.
The first defendant had examined himself as DW1 and one Kuppusamy,
Kothandaraman and Arasayee as DW2 to DW4 and had marked Exs.B1
to B12. The copy of the sale deed dated 19.05.1972 and registration copy
of the sale deed dated 08.11.1993 were marked as third party documents
Ex.1 & Ex.2.
8. The learned District Munsif on considering the evidence on
record decreed the suit as prayed for. The learned Judge observed that the
suit property which measures 0.82 cents and which is now comprised in
544/10D has been allotted to the plaintiff and the patta in respect of this
property stands in the name of the plaintiff. Prior to 1974, the extent that
stood in the name of the defendants' father was an extent of 6 acres. The
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SA.No.869 of 2001
learned Judge had also observed that the Adangal in respect of the suit
property which is marked as Ex.A3 clearly shows that the extent of 0.82
cents in S.No.544/10B stood in the name of the plaintiff. The learned
Judge had also taken note of the fact that the defendants' father had been
addressed as Natesan or Natarajan in the different revenue documents
and this mistake has not been rectified.
9. Aggrieved by the judgment and decree of the trial Court, the
defendants had filed an appeal in A.S.No.149 of 1996 on the file of the
Sub-Court, Cuddalore. The learned Sub-Judge, by his judgment and
decree dated 23.03.2001, proceeded to allow the appeal and reversed the
judgment and decree passed by the trial Court.
10. The learned Judge observed that the plaintiff has produced
the documents only from the year 1987-revenue records and therefore,
the finding of the trial Court that the plaintiff is entitled to declaration of
title was totally wrong and therefore, the learned Judge proceeded to
allow the appeal in toto. The Appellate Court has failed to consider the
fact that the defendants have admitted the possession of the plaintiff
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SA.No.869 of 2001
despite which the learned Judge had dismissed the suit seeking bare
injunction.
11. Challenging the said judgment and decree, the plaintiff is
before this Court. The above Second Appeal has been admitted on the
following substantial questions of law:-
“1. Whether the learned Subordinate Judge
was not in error in rejecting the evidential value of the
patta and kist receipts in favour of the plaintiff as
relevant piece of evidence to support his title especially
when the property was claimed to be ancestral and
allotted in an oral partition to the plaintiff?
2. Whether the Court below was not in error in
failing to apply the presumption that the official act in the
resurvey proceedings entering the name of the plaintiff
was properly done and drawn an adverse inference
against the defendants in not successfully assailing the
proceedings in the resurvey?
3. Whether the proceedings of the Executive
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SA.No.869 of 2001
Magistrate were not irrelevant for deciding the questions
of title relating to immovable property?”
12. Heard the counsels on either side.
13. The plaintiff's case is that in the oral partition that had been
held after the death of their father, the suit property and other property
has been allotted to his share. At the time of the partition, the plaintiff
was just aged about 15 years and his mother had also passed away
immediately after his father. It was the father of the defendants 1 & 2
who had been taking care of the property on behalf of the plaintiff. The
defendants would contend that under the oral partition the suit property
and other property has been allotted to the share of their father namely
“Natesan” @ “Natarajan” and thereafter it is in the possession and
enjoyment of the defendants.
14. Admittedly, the patta in respect of the suit property now
stands in the name of the plaintiff as patta No.1876. The plaintiff has
filed Ex.A3 which is the Adangal extract period.
15. A perusal of Ex.A3 would clearly show that the defendants'
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SA.No.869 of 2001
father seems to have his name included in respect of the property
comprised in S.No.676/2 which is later sub-divided as S.No.544/1, 2, 8,
9 & 10. The patta thereafter was re-numbered as 1876 and it is standing
in the name of one Vadivel and thereafter in the name of the plaintiff.
The extent of the property in patta No.251 standing in the name of the
first defendant's father was over and above an extent of 6 acres whereas
the suit property measures 0.82 cents is now comprised in S.No.544/10
and stands in the name of the plaintiff. DW1 in his cross examination has
stated that the patta had been changed in the year 1974 and a challenge
by them to grant of patta to the plaintiff has also ended in dismissal and
the same has not been further challenged. Therefore, the inclusion of the
name of the plaintiff as the owner of S.No.554/10 is therefore implied to
be accepted by the defendants. The plaintiff has also been in possession
of the property ever since then and by having the patta changed in his
name, the plaintiff has asserted an independent title to the property and
his possession from that day has become adverse to that the defendants.
Therefore, the substantial questions of law Nos.1 & 2 are answered in
favour of the plaintiff.
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SA.No.869 of 2001
16. Considering the fact that the plaintiff has been able to show
his continuous possession of the property also on the date of the filing of
the suit, the plaintiff is entitled to a decree for injunction. The plaintiff
has proved that he has prescribed title to the property and therefore, the
substantial question of law No.3 becomes redundant. Consequently, the
Second Appeal is allowed and the decree and judgment of the Lower
Appellate Court is set aside and the decree and judgment of the trial
Court is confirmed. No costs.
23.01.2023
Index : Yes/No
Internet : Yes/No
dna
To
1.The Sub-Court, Panruti
2.The District Munsif, Panruti.
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SA.No.869 of 2001
P.T.ASHA, J.
dna
S.A.No.869 of 2001
23.01.2023
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SA.No.869 of 2001
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