Madras High Court
D.Kannan vs M.Parameshwari : Ist on 17 October, 2023
2023/MHC/4773
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A(MD)NO.610 OF 2023
and
C.M.P(MD)No.14170 of 2023
D.Kannan :Appellant/Second Respondent/
Second defendant
.vs.
1.M.Parameshwari : Ist Respondent/Appellant/Plaintiff
2.A.Durairaj
3.K.Krishnamoorthy
4.K.Vishwanathan :Respondents 2 to 4/Respondents
1,3 and /Defendants 1,3 and 4.
PRAYER: Second Appeal filed under Section 100 of the Civil
Procedure Code against the judgment and decree made in A.S.No.
71 of 2018, dated 26.02.2023, on the file of the Principal
Subordinate Court, Pudukkottai, reversing the judgment and decree
made in O.S.No.8 of 2010, dated 21.07.2017, on the file of District
Munsif Court, Keeranur.
For Appellant :Mr.C.Gangai Amaran
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2
JUDGMENT
*********
This Second Appeal is filed challenging the judgment of the
Principal Sub-Court, Pudukkottai in A.S.No.71 of 2018, which was
filed against the judgment in O.S.No.8 of 2010, on the file of the
learned District Munsif, Keeranur.
2.The first respondent, as plaintiff, has filed the suit against
the appellant and respondents 2 to 4 seeking the relief of
permanent injunction not to disturb her possession in the suit
property and for other reliefs.
3.The suit property measures an extent of 0.01.0 ares in
S.No.444/16 in Chengalur Village, Kulathur Taluk, Pudukkottai
District within the specific boundaries given in the plaint schedule
of property.
4.The case of the plaintiff in brief is as follows:
The suit property was in possession and enjoymnent of the
plaintiff and her husband and their predecessor for a long time. In
confirmation of their possession and enjoyment, assignment patta
was given to the plaintiff. There is a house with asbestos roof in the
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suit property. On the south of the suit property, defendants property
situates. The defendants are influential persons. The defendants
tried to cut the Karuvelam trees standing in the plaint schedule
property on 15.10.2009, which was prevented by the plaintiff and
her relatives. A complaint was given in this regard in Mathoor
Police Station. The defendants are trying to prevent the peaceful
possession of the plaintiff in the suit property.Thus the suit was
filed.
5.In the written statement filed by the defendants, it is stated
that the suit property and in the lands surrounding the suit
property are Natham lands.The plaintiff’s husband Murugaiah and
his Pangali Maruthaiah Mangalar, his son Sappani Mangalar sold the
suit property to the second defendant’s father Kosalraj Mangalar on
21.11.1978. From the date of purchase, Kosal raj is in possession
and enjoyment of the property. Claiming of possession of the suit
property is not correct. The revenue records, especially, patta was
not given after proper enquiry. Patta would have been obtained by
exercising influence and by fraudulent means. Thus the defendants
prayed for dismissal of the suit.
6.On considering the oral and documentary evidence
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produced before the trial Court, the learned Trial Judge after finding
that the plaintiff was granted Ex.A1 patta and she is in possession
and enjoyment of the property on the basis of Ex.A1 patta and that
Ex.B1 and Ex.B3 documents produced by the defendants do not
relate to the suit property, strangely dismissed the suit on the
ground that the plaintiff produced Ex.A4 which do not relate to the
suit property. In appeal, the learned First Appellate Judge,
reappreciated the evidence and found that the plaintiff has
established her title and possession in respect of the suit property
and rival claim made by the defendants is not proved and finally
held that the dismissal of the suit on the basis of Ex.A4 is not
acceptable when the plaintiff traces her title and possession on the
basis of Ex.A1, sets aside the judgment of the trial Court and
decreed the suit and allowed the appeal. Therefore this Second
appeal is filed by the second defendant.
7.The point for consideration in this Second Appeal is whether
any substantial questions of law is made out for admission of the
Second Appeal?
8.A reading of the judgment of the trial Court shows that it
has elaborately considered the oral and documentary evidence
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produced by the parties. After appreciating the evidence, the
learned Trial Judge found that Ex.A1 relates to the suit property in
S.No.444/16. He also found that the rival claim made by the
defendants on the basis of Ex.B3-Sale deed does not relate to the
suit property, but it relates to the property in S.No.158/7.There is
an observation that the defendants have not produced any evidence
to show that they have valid claim in respect of the suit property in
S.No.444/16. From the evidence of P.W.1, the learned Trial Judge
came to the conclusion that Ex.B3 property relates to the property
on the south of the suit property. It recorded that the defendants
have contradictory plea in the written statement and in the
evidence of D.W.1 with regard to the enjoyment of the suit property
by the defendants. Finding that the defendants have not specificaly
denied the assignment of suit property to the plaintiff through Ex.A1
and that they have not produced any document to show that they
are in possession of the suit property, it was found that the plaintiff
was in possession of the suit property on the basis of Ex.A1,
assignment patta.However, on the basis of Ex.B2 letter, the trial
Court came to the conclusion that Ex.A4 does not relate to the suit
property.
9.Ex.B2 is the letter of Tahsildar, Kulathoor given under the
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Right to Infomation Act. Ex.A4 relates to S.No.444/16 as per the
proceedings in Tho.MU.P.T.R.No.1044/2009 and relates to
Sathiamangalam Village. Without any further examination and the
veracity of the information in Ex.B2 and Ex.A4, the learned Trial
Judge came to the conclusion that the plaintiff produced Ex.A4
despite the fact that it does not relate to the suit property. Thus
dismissed the suit stating that the plaintiff has approached the
Court with unclean hands. This finding of the learned Trial Judge
without any further enquiry with regard to Ex.B2 and Ex.A4, is not
proper and in the manner known to law.This mistake was rectified
by the First Appellate Court. The learned First Appellate Judge
finding that the plaintiff has established her right, title and
possession in respect of the suit property on the basis of Ex.A1,
sets aside the judgment of the trial Court and decreed the suit.
10.This Court finds from the well considered judgment of the
First Appellate Court that there is no cause for any interference by
this Court. The plaintiff has proved the case without reasonable
doubt with regard to her right, title, enjoyment and possession in
respect of the suit property and the suit was rightly decreed by the
First appellate Court. The judgment of the First Appellate Court
stands confirmed. There is no substantial questions of law arises for
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consideration in this Second Appeal.
11.Thus the Second Appeal is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
17.10.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Principal Subordinate Judge,
Pudukkottai.
2.The District Munsif,
Keeranur.
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.CHANDRASEKHARAN,J.
vsn
JUDGMENT MADE IN
S.A(MD)NO.610 OF 2023
and
C.M.P(MD)No.14170 of 2023
17.10.2023
https://www.mhc.tn.gov.in/judis
