Madras High Court
M.Ponnayyan vs R.Christopher on 1 March, 2023
S.A.(MD) Nos.476 and 477 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.03.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.(MD) Nos.476 and 477 of 2015
S.A.(MD) No.476 of 2015:
M.Ponnayyan ... Appellant/Appellant/Plaintiff
Vs
R.Christopher ... Respondent/Respondent/
Defendant
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 26.03.2015 made in A.S.No.92 of 2012 on
the file of the Sub Court (Camp Court), Padmanabhapuram, confirming the
judgment and decree dated 02.08.2011 made in O.S.No.134 of 2006 on the
file of the Principal District Munsif's Court, Padmanabhapuram.
S.A.(MD) No.477 of 2015:
M.Ponnayyan ... Appellant/Appellant/Defendant
Vs
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S.A.(MD) Nos.476 and 477 of 2015
R.Christopher ... Respondent/Respondent/
Plaintiff
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 26.03.2015 made in A.S.No.25 of 2013 on
the file of the Sub Court (Camp Court), Padmanabhapuram, confirming the
judgment and decree dated 02.08.2011 made in O.S.No.167 of 2009 on the
file of the Principal District Munsif's Court, Padmanabhapuram.
In both cases
For Appellant : Mr.C.Godwin
For Respondent : Mr.T.Pon Ram Kumar
COMMON JUDGMENT
1.1. S.A.(MD) No.476 of 2015 is arising out of a suit for declaration
of title, permanent injunction and also for demarcation of boundary and
putting up of compound wall. The suit was dismissed by the trial Court and
the findings of the trial Court were confirmed in first appeal. Aggrieved by
the same, the unsuccessful plaintiff is before this Court.
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S.A.(MD) Nos.476 and 477 of 2015
1.2. S.A.(MD) No.477 of 2015 is arising out of a suit for bare
injunction filed by the respondent in O.S.No.167 of 2009. The suit was
decreed by the trial Court and the findings of the trial Court were confirmed
in first appeal and hence, the unsuccessful defendant is before this Court.
2.1. The appellant herein claimed that he purchased the suit property
to an extent of 1½ cents in Resurvey No.301/22 from one John Sylus on
14.11.1991 under Ex.A.1. The vendor, in turn, purchased the suit property
from Raju Vagaiyara under Ex.A.13, dated 16.01.1981. The respondent
herein is the eastern neighbour of the appellant and he had no title or
possession over the suit property. The property purchased by the appellant
from one Devadoss lies on the north of the suit property. According to the
appellant, the suit property is the access to reach his property on the
northern side. The appellant claimed that the respondent tried to commit
trespass into the suit property by cutting the tamarind trees in the suit
property and hence, the appellant was constrained to file the suit for the
above said reliefs.
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S.A.(MD) Nos.476 and 477 of 2015
2.2. The respondent herein filed a written statement denying the title
and possession of the appellant over the suit property. The respondent
specifically denied the title of the appellant's vendor viz., John Sylus and his
predecessor James Nadar. The averment of the appellant that the suit
property was used as a pathway to reach his property on the northern side
was also specifically denied. The respondent claimed that the suit property
originally belonged to his grandmother Gnanapackiam and after her death,
the suit property was allotted to the share of the respondent's father
Rajayyan in a partition between Rajayyan and his brother Thankayan on
24.09.1993.
3.1. In O.S.No.167 of 2009, suit for bare injunction filed by the
respondent, he claimed that in Resurvey No.301/22, his father Rajayyan
purchased 5.350 cents under four sale deeds dated 28.01.1967, 31.12.1973,
28.01.1975 and 06.04.1979. It was also claimed that the respondent's
grandmother Gnanapackiam got assignment patta in respect of one cent in
the suit survey number on the immediate west of 5.350 cents purchased by
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S.A.(MD) Nos.476 and 477 of 2015
his father. Thus, the respondent claimed right over 6.350 cents in the suit
survey number. It was also alleged that the appellant tried to encroach upon
portion of the suit property, and hence, the respondent was constrained to
file the suit for bare injunction.
3.2. The appellant herein filed a written statement denying the title of
the respondent's father Rajayyan over 5.350 cents in the suit survey number.
He also denied the assignment of one cent in favour of Gnanapackiam,
grandmother of the respondent. The appellant also contended that the
partition deed, dated 24.09.1993 relied on by the respondent was a
fraudulent document, wherein 1½ cents purchased by the appellant from
John Sylus was wrongly included.
4.1. Both the suits in O.S.No.134 of 2006 filed by the appellant and
the suit in O.S.No.167 of 2009 filed by the respondent were tried together
and the evidence was recorded in the appellant's suit viz., O.S.No.134 of
2006.
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S.A.(MD) Nos.476 and 477 of 2015
4.2. On consideration of oral and documentary evidences available on
record, the trial Court came to the conclusion that the appellant failed to
prove his title over the suit property and dismissed his suit. The trial Court
also found that the respondent was able to prove his possession over the
property in O.S.No.167 of 2009 and hence, decreed his suit. Aggrieved by
the common judgment passed in both the suits, the appellant herein
preferred first appeals in A.S.No.92 of 2012 and A.S.No.25 of 2013. Both
the appeals preferred by the appellant were dismissed by the first appellate
Court by confirming the findings rendered by the trial Court. Aggrieved by
the same, the appellant is before this Court. This Court at the time of
admission, formulated the following substantial questions of law:
“i) Whether the Courts below were right in
concluding that the grand-mother of the plaintiff in
O.S.No.167 of 2009 was entitled to one cent of land in
Survey No.301/22 solely based on Ex.B.7?
ii) Whether the Courts below were right in
concluding that the plaintiff has not established his title to
1½ cents of land purchased by him under Ex.A1 dated
14.11.1991 despite the production of title deed dated
16.01.1981 marked as Ex.A13?
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S.A.(MD) Nos.476 and 477 of 2015
iii) Whether the lower appellate Court was right in
not considering the Ex.A23 and Ex.A24, which were
received in evidence by it?”
5. The learned counsel for the appellant submitted that the appellant
proved his title by producing his title document Ex.A.1 and the parent
document Ex.A.13 and hence, the finding rendered by the Courts below as
if the appellant failed to prove his title over the suit property got vitiated by
non-consideration of material evidence. The learned counsel forcefully
submitted that the Advocate Commissioner appointed by this Court filed his
report stating that the properties of both the appellant and the respondent
were overlapping and hence, the mere suit for bare injunction filed by the
respondent was not at all maintainable.
6. The learned counsel for the respondent, by taking this Court to the
findings rendered by the Courts below and also the boundary description
found in the documents of the appellant, contended that the appellant failed
to prove his title over the suit properties and hence, the Courts below rightly
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S.A.(MD) Nos.476 and 477 of 2015
dismissed the suit for declaration and injunction filed by the appellant. The
learned counsel further submitted that the Courts below, based on the title
document relied on by the respondent and the revenue document viz.,
Ex.B.8 and Ex.B.9 in the name of the respondent, came to the conclusion
that the possession of the respondent over the suit property was proved and
hence, granted a decree for injunction. According to the learned counsel,
the finding of the Courts below that the respondent proved his prima facie
possession over the suit property requires no interference by this Court.
7. Heard the arguments of the learned counsel for the appellant and
the learned counsel for the respondent and perused the typed set of papers
and other records.
8.1. The appellant herein claimed right over 1½ cents in Resurvey
No.301/22 under Ex.A.1 dated 14.11.1991, whereunder his vendor John
Sylus sold 1½ cents to the appellant. The parent document of the appellant
viz., the sale deed executed by Raju Vagaiyara in favour of John Sylus, was
marked as Ex.A.13. Under Ex.A.13, Raju Vagaiyara sold only 1¼ cents to
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S.A.(MD) Nos.476 and 477 of 2015
John Sylus. However, John Sylus sold 1½ cents to the appellant under
Ex.A.1. There is no explanation available on the side of the appellant as to
how John Sylus, who purchased 1¼ cents under Ex.A.13 was entitled to sell
1½ cents to the appellant under Ex.A.1. Unless the appellant satisfies the
Court as to how his vendor got the excess 1/4 cents to convey 1½ cents to
the appellant, the appellant is not entitled to get a decree for declaration.
8.2. Further, the four boundaries mentioned in Ex.A.1 and Ex.A.13
are not tallying with each other. In Ex.A.13, the northern boundary was
mentioned as Arumainayagam's property, whereas in Ex.A.1, the northern
boundary is mentioned as property of the appellant. In Ex.A.13, the eastern
boundary was mentioned as property of Francis. However, in Ex.A.1, the
eastern boundary is mentioned as Rajayyan's (father of the respondent)
property. In Ex.A.13, the southern boundary was mentioned as road.
However, in Ex.A.1, the southern boundary is mentioned as idaiveli
(space). In Ex.A.13, the western boundary was mentioned as Sadayan
Arumainayagam's property. However, in Ex.A.1, the western boundary is
mentioned as Pushpam's property. The trial Court, on careful consideration
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S.A.(MD) Nos.476 and 477 of 2015
of boundaries mentioned in Ex.A.1 and Ex.A.13, came to the conclusion
that the properties covered under Ex.A.1 and Ex.A.13 are not one and the
same. The first appellate Court also considered Ex.A.1 and Ex.A.13 along
with the parent documents produced by the appellant before the first
appellate Court viz., Ex.A.23 and Ex.A.24 and came to a factual conclusion
that Ex.A.1 and Ex.A.13 are not relating to the same property. Therefore, on
two accounts, the appellant is not entitled to declaration of title. Firstly, the
appellant failed to explain as to how his vendor, who was said to have
purchased 1¼ cents under Ex.A.13, conveyed 1½ cents to the appellant
under Ex.A.1. Further, in view of the discrepancy in the four boundaries,
both the Courts below came to the conclusion that the properties dealt with
under Ex.A.1 and Ex.A.13 were different properties. The said factual
finding rendered by the Courts below is binding on this Court and hence, it
requires no interference while exercising jurisdiction under Section 100 of
Code of Civil Procedure. Accordingly, the second and third substantial
questions of law are answered against the appellant and in favour of the
respondent. Consequently, S.A.(MD) No.476 of 2015 is dismissed by
confirming the judgments and decrees passed by the Courts below.
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S.A.(MD) Nos.476 and 477 of 2015
9.1. The respondent herein filed Exs.B.1, B.2, B.4 and B.5 dated
28.01.1967, 31.12.1973, 28.01.1975 and 06.04.1979 respectively to prove
that his father purchased 5.350 cents in the suit survey number. The
respondent also claimed that one cent in the suit survey number was
assigned in favour of the respondent's father's mother Gnanapackiam. Thus,
he claimed right over 6.350 cents in the suit survey number. The respondent
also produced Ex.B.3 to show that in the family partition, 6.350 cents was
allotted to his share including one cent assigned in favour of his
grandmother Gnanapackiam. However, the respondent failed to produce the
assignment deed in favour of Gnanapackiam and prove that one cent was
assigned in favour of Gnanapackiam and hence, his family enjoyed 6.350
cents in the suit survey number.
9.2. The Advocate Commissioner appointed by this Court measured
the suit properties based on the appellant's document viz., Ex.A.1 and
respondent's document Ex.B.3 and found that the properties covered under
Ex.A.1 and Ex.B.3 are overlapping on the south-western corner and the
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S.A.(MD) Nos.476 and 477 of 2015
same is noted as 'NMLGHKN' by the Advocate Commissioner. However, as
stated earlier, the respondent failed to prove that his grandmother was
assigned with one cent and therefore, his family enjoyed 6.350 cents in the
suit survey number. Therefore, there is a serious cloud over the title of the
respondent over the suit property. In such circumstances, it is not open to
him to maintain a simple suit for injunction simpliciter without prayer for
declaration of title. Though the respondent produced Ex.B.7, patta
passbook in the name of his father Rajayyan, in the absence of any
document to show that his family owned 6.350 cents in the suit survey
number, merely based on Ex.B.7-patta, we cannot come to a definite
conclusion that the respondent's family got right over 6.350 cents in the suit
survey number. Even in Ex.B.7, the original pattadhar's name was
mentioned as Gnanapackiam and three others. Subsequently, the
respondent's father's name appeared to have been included, but the said
correction was not countersigned by the authorised officer. Therefore, the
first substantial question of law is answered in favour of the appellant and
against the respondent. Consequently, S.A.(MD) No.477 of 2015 is allowed
by setting aside the judgments and decrees passed by the Courts below.
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S.A.(MD) Nos.476 and 477 of 2015
10. In nutshell,
(i) S.A.(MD) No.476 of 2015 is dismissed by confirming the
judgments and decrees passed by the Courts below;
(ii) S.A.(MD) No.477 of 2015 is allowed by setting aside the
judgments and decrees passed by the Courts below; and
(iii) In the facts and circumstances of the case, there would be no
order as to costs.
01.03.2023
(2/2)
NCC: Yes/No
Index:Yes/No
abr
To
1.The Sub Judge (Camp Court),
Padmanabhapuram.
2.The Principal District Munsif,
Padmanabhapuram.
Copy to
The Section Officer, VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD) Nos.476 and 477 of 2015
S.SOUNTHAR, J.
abr
S.A.(MD) Nos.476 and 477 of 2015
01.03.2023
(2/2)
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