Madras High Court

Easwara Pillai (Died) vs P.Mahadevan Pillai on 17 November, 2023

                                                                               S.A.No.790 of 2004



                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 17.11.2023

                                                     CORAM

                                    THE HONOURABLE MRS.JUSTICE R.KALAIMATHI

                                               S.A.No.790 of 2004 &
                                            C.M.P.(MD)No.11604 of 2023

                     1.Easwara Pillai (died)
                     2.Padmakumar
                     3.Leena                                   ...Appellants


                     (Appellants 2 and 3 are brought on record as LRs
                     of deceased sole appellant, vide Court order dated
                     17.04.2017 in C.M.P.(MD)No.1018 & 1019 of 2017
                     in S.A.No.790 of 2004)
                                                       vs.
                     1.P.Mahadevan Pillai
                     2.Velu Pillai (died)
                     3.Rajendradhas
                     4.Vamadevan
                     5.Kasthuri Bai
                     6.Jala Prabha
                     7.Sathya Priya
                     8.Srinivasan                            ... Respondents


                     (Respondents 5 to 8 are brought on record as LRs
                     of the deceased 2nd respondent vide Court order
                     dated 07.02.2023 in C.M.P.(MD)Nos.697, 699 &
                     701 of 2023 in S.A.No.790 of 2004)


                     Page 1 of 12
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                                                                                        S.A.No.790 of 2004



                     Prayer: Second Appeal filed under Section 100 of the Code of Civil
                     Procedure against the Judgment and Decree dated 07.11.2003 in
                     A.S.No.50          of   1998   on   the   file   of   the   Subordinate    Judge,
                     Padmanabhapuram confirming the Judgment and Decree dated
                     04.11.1997 in O.S.No.1139 of 1995 on the file of the District Munsif cum
                     Judicial Magistrate, Eraniel.


                     For Appellants           :     Mrs.Ananta C.Rajesh
                                                    for Mr.Thirugnanasambandham

                     For Respondents :              Mr.S.Arunnithy
                                                    for R1, R3 to R8
                                                    R2 - Died

                                                         JUDGMENT

Against the concurrent findings of the Trial Court as well as the

first Appellate Court, the defendant has preferred this Second Appeal

(against Judgment and Decree passed in O.S.No.1139 of 1995 on the

file of the District Munsif cum Judicial Magistrate, Eraniel and Judgment

and Decree passed in A.S.No.50 of 1998 on the file of the Sub Court,

Padmanabapuram).

2. For the sake of convenience, the parties are referred to

hereunder according to their litigative status before the Trial Court.

https://www.mhc.tn.gov.in/judis S.A.No.790 of 2004

3. According to the plaintiffs, the suit property, namely, 33 1/2

cents situate at Eraniel Village of Kalkulam Taluk, Kanyakumari District,

old S.No.1932/1, Re.S.Nos.683/9 & 683/14 pt with the boundaries, (i)

North - Property of defendant and 4th plaintiff, (ii) South & East -

Defendant's property and (iii) West - Pathway, originally belong to one

Mathavan Pillai, who got the property through partition. Mathavan Pillai

had two sons Parameswaran Pillai and Padmanabha Pillai. The

plaintiffs are the sons of Parameswaran Pillai. Sole defendant Easwara

Pillai is the son of Padmanabha Pillai. Respective fathers of both sides

entered into a registered partition of their properties on 17.01.1114

Malayalam Era (1938 AD). As per the partition deed, plaintiffs' father

Parameswaran Pillai was alloted 63 cents in the middle of old S.No.

1932 (Eraniel Village). The said Survey Number was subsequently sub

divided as Re-S.Nos.683/10, 683/9 and 683/14 pt. Parameswaran Pillai

executed a Gift deed in favour of his daughter Sivakala in respect of 30

cents of land in Re.S.No.683/10 in the year 1984. She, in turn, sold it to

the 4th plaintiff P.Vamadevan herein. Parameswaran Pillai planted tree

saplings in the remaining portion in Re.S.Nos.683/9 and 683/14 pt. On

16.06.1995, the plaintiffs' partitioned the suit property and have been in

enjoyment of their respective portions. The defendant is the owner of

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the adjacent eastern properties of the suit property. On 01.11.1995, the

defendant made an attempt to remove the fencing plants and

demarcating stones with a view to annex some portion of the suit

property with his property. Hence, a suit for permanent injunction was

filed.

4. Per contra, the defendant claims that he is the absolute owner

of the property in Re.S.Nos.683/9 and 683/14 pt as per the partition

made during the lifetime of his father. He does not have any knowledge

about the Gift deed as alleged in the plaint. The defendant also stoutly

refused the allegation that Parameswaran Pillai planted tree saplings in

Re.S.Nos.683/9 and 683/14 pt. The defendant also denies the fact that

the plaintiffs' father enjoyed the properties in Re.S.Nos.683/9 and

683/14 pt.

5. Based on the rival submissions, the Trial Court framed the

relevant issues.

6. At trial, the second plaintiff, Velu Pillai has examined himself as

PW1. Exs.A1 to A18 were marked. Partition deed dated 17.01.1114

https://www.mhc.tn.gov.in/judis S.A.No.790 of 2004

(ME) and partition deed dated 16.06.1995 are Exs.A1 and A8. Patta

Pass Book is Ex.A9. On the defendant's side, sole defendant Easwara

Pillai has examined himself as DW1 and Exs.B1 to B5 were marked.

Patta Book is Ex.B5. The Advocate Commissioner's Report, Plan and

Interim Report are Exs.C1 to C3.

7. After evaluating the oral and documentary evidence of both

sides, the Trial Court concluded that as per the Advocate Commissioner

report Ex.C1, there is a clear well defined boundary available on all

sides and there is a live fence with plants of 15 years age around it and

the objections filed by the defendant were found to be not acceptable

and it was held that based on the documents, the plaintiffs are entitled to

33 1/2 cents out of 89 cents in Re.S.Nos.683/9 and Re.S.No.683/14. It

was further held that the same was allotted to the share of the father of

the plaintiffs under partition deed Ex.A1. Permanent injunction was

granted in favour of the plaintiffs.

8. The Judgment of the Trial Court was sought to be challenged

by the defendant in A.S.No.50 of 1998 on the file of the Sub Court ,

Padmanabapuram and after evaluating the evidence, the first Appellate

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Court, primarily relying upon Exs.A9 to A11 and considering other

documents, besides the report of the Advocate Commissioner,

concluded that the suit property namely 33 1/2 cents is in the

possession and enjoyment of the plaintiffs and thereby, the Judgment of

the Trial Court was confirmed by dismissing the first Appeal.

9. Aggrieved by the said Judgment, the defendant has preferred

this Second Appeal.

10. The learned counsel appearing for the appellants would

vehemently contend that infact, the defendant is the absolute owner of

the property in Re.S.Nos.683/9 and 683/14 of Eraniel Village and he

was in possession and enjoyment of the same, in view of the partition

taken place during the life time of his father.

11. The learned counsel for the respondents would strongly argue

that the suit property originally belong to Mathavan Pillai and out of

larger extent, the present suit property fell to the share of

Parameswaran Pillai as per Ex.A1 partition deed. It is his further

argument that subsequent to the execution of Gift deed by

https://www.mhc.tn.gov.in/judis S.A.No.790 of 2004

Parameswaran Pillai in favour of his daughter Sivakala, the remaining

property is in the possession of the plaintiffs, as borne out by Exs.A1, A8

and A9, which cannot be disputed by the defendant. He would also

contend that the suit property is the property of Mathavan Pillai and the

defendant is the paternal grandson and he cannot deny the fact that the

property originally belong to Mathavan Pillai.

12. The following substantial questions of law arise for

consideration.

"1. Is not the conclusion of the Court

below erroneous in decreeing the suit as the

plaintiffs failed to prove their claim by oral and

documentary evidence?

2. Is not the conclusion of the Court

below erroneous in decreeing the suit without

considering the documentary evidence

adduced by the appellant / defendant?

https://www.mhc.tn.gov.in/judis S.A.No.790 of 2004

3. Is not the conclusion of Courts below

erroneous in decreeing the suit as the plaintiff

have not come to the Court with clean hands

but had suppressed the materials facts?"

13. The two branches of Mathavan Pillai had legal tussle in

respect of 33 1/2 cents in Re.S.Nos.683/9 and 683/14 pt situated at

Eraniel Village of Kalkulam Taluk, Kanyakumari District. The

relationship between the parties is not in dispute. The original owner

Mathavan Pillai had two sons Parameswaran Pillai and Padmanabha

Pillai. The plaintiffs are the sons of Parameswaran Pillai. The

defendant is the son of Padmanabha Pillai. Both sides have partitioned

their father's property. From a close perusal of Ex.A1, partition deed, it

is seen that the middle portion was allotted to the plaintiffs' father

Parameswaran Pillai. 63 cents to the East of the said property and 40

cents to the west of the above said property are allotted to Padmanabha

Pillai is not in dispute. A close perusal of the evidence of PW1 and the

written statement reveal the fact that the plaint details are not seriously

disputed. As per Ex.A11, the respective shares of the plaintiffs are as

follows.





https://www.mhc.tn.gov.in/judis
                                                                                          S.A.No.790 of 2004



                           Plaintiffs          R.S.No.683/9    R.S.No.683/14 Total
                           Plaintiff No.1      7 cents         -                7 cents
                           Plaintiff No.2      3 cents         -                3 cents
                           Plaintiff No.3      7 cents         3/4 cents        7 3/4 cents
                           Plaintiff No.4      10 1/4 cents    5 1/2 cents      15 3/4 cents
                                               27 1/4 cents    6 1/4 cents      33 1/2 cents

These details are borne out by the revenue records. As mentioned

above, based on the partition deed Ex.A1 and A8 coupled with the

revenue records, both the Courts have concurrently given a finding that

the plaintiffs have been in possession and enjoyment of the suit property

and chosen to favour the plaintiffs.

14. Based on the aforesaid discussions, I do not find any infirmity

in the Judgments of the Trial Court as well as the first Appellate Court

and hence, the substantial questions of law are answered against the

appellant.

15. In view of the above, the Second Appeal has to be dismissed

and stands dismissed. The Judgment and Decree passed by the Trial

Court in O.S.No.1139 of 1995 and the Appellate Court in A.S.No.50 of