Madras High Court

Kuppusami Padayachi(Died) vs Ranganathan on 4 March, 2024

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 04.03.2024

                                                      CORAM

                                  THE HONOURABLE Mr. JUSTICE G.ARUL MURUGAN

                                                S.A.No.740 of 2003



                      Kuppusami Padayachi(died)
                      2.Sivapackiam
                      3.Govindan
                      4.Ambika
                      5.Venkatasalam
                      6.Periasamy                                          … Appellants
                      (Appellants 2 to 6 are brought on record
                       as the LRs of the deceased sole appellant
                       vide order dated 14.11.2018 made in
                       CMP.No.17246 to 17248/2018 (SMSJ))

                                                         vs.

                      1.Ranganathan
                      2.Radhakrishnan
                      3.Veeramani
                      4.Sundaramurthi                                    ... Respondents



                      Prayer:- Second Appeal filed under Section 100 of the Civil Procedure

                      Code against the judgment and decree dated 31.01.2002 passed in
https://www.mhc.tn.gov.in/judis
                      A.S.No.39 of 2001 on the file of the Principal Sub Court, Vridhachalam,

                      partly allowing the judgment and decree dated 27.04.2001 passed in

                      OS.No.7 of 1997 on the file of the District Munsif cum Judicial

                      Magistrate, Neyveli.



                                               For Appellants      : M/s.R.Meenal
                                               For Respondents      : No Appearance



                                                         JUDGMENT

The plaintiff in the suit is the appellant before this Court. Pending

appeal, the sole appellant died. Appellants 2 to 6 are substituted as legal

heirs. The second appeal is filed challenging the judgment and decree

dated 31.01.2002 in AS.No.39 of 2001 on the file of the Principal Sub

Court, Vridhachalam, partly allowing the judgment and decree dated

27.04.2001 in OS.No.7 of 1997 on the file of the District Munsif Cum

Judicial Magistrate, Neyveli.

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

ranking before the trial court.

https://www.mhc.tn.gov.in/judis The brief facts, which gave rise to the present Second Appeal, are as

follows:

3. According to the plaintiff, the plaintiff is the absolute owner of

the property having purchased from one Kamaraj and Nedumaran sons of

Ramanujam through a sale deed dated 07.03.1996 in Ex.A.1. It is the

case of the plaintiff that beneath the land of the plaintiff, the lands

belonging to the defendants are situated. Since the vendors of the

plaintiff have sold the property to the plaintiff without selling the land to

the defendants, the defendants became inimical and created disturbances

in the peaceful possession and enjoyment of the property by the plaintiff.

Further, according to the plaintiff, on 15.11.1996, the defendants

attempted to encroach and interfere into the suit property, and therefore

the plaintiff has come up with suit for declaration and permanent

injunction.

https://www.mhc.tn.gov.in/judis

4. The first defendant has filed the written statement adopted by

defendants 2 to 4 and resisted the suit. It is the case of the defendants

that the suit property relates to S.No.68/1 and the total extent of land is

0.80 cents. Out of the total land, an extent of 0.28 cents was jointly

purchased by Ramanujam and Manonmani Ammal on 31.01.1977 and

thereafter in the year 1980, through an oral partition, out of 0.28 cents,

0.02 cents were left for a common pathway, and the balance extent of

0.26 cents was divided between them. Of this, 0.13 cents in the higher

portion were allotted to Ramanujam, and 0.13 cents in the lower portion

were allotted to Manonmani Ammal. From the date of partition, the

parties have been in possession and enjoyment of their respective shares

of the suit properties. In respect of 0.13 cents of land which was allotted

to Manomani Ammal, she sold the property in favour of the first

defendant on 02.02.1994 through Ex.B.2. In the sale deed executed in

Ex.B.2, Ramanujam's sons, i.e, Kamaraj and Nedumaran were the

attestors to the sale deed. Thereafter, when the property was sold in

favour of the plaintiff in Ex.A.1, Kamaraj and Nedumaran who had https://www.mhc.tn.gov.in/judis attested the sale deed in Ex.B.2, conveyed an extent of 0.14 cents instead

of 0.13 cents, without mentioning, the 0.02 cents allotted for the common

way of access. It is the case of the defendants that all the parties, even

the vendors had been enjoying the property of a common way of access

for nearly 12 years. As such, 0.01 cents excessively sold in favour of the

plaintiff will not grant any specific right for the plaintiff, even the

vendors did not have any right over 0.01 cents except by way of common

enjoyment by both the parties.

Evidence and Documents:

5. During Trial, PW.1 & PW.2 were examined on the side of the

plaintiff and Ex.A.1 to A.5 were marked. On the side of the defendants

DW.1 & DW.2 were examined and Ex.B.1 to Ex.B.12 were marked.

Findings of the Trial Court:

6. After appreciating the evidence and documents, the trial court

dismissed the suit. The trial court found that when the 0.02 cents of https://www.mhc.tn.gov.in/judis lands had been earmarked for the common way of access, only 0.26 cents

of land were available. But, however when Ex.A.1 was executed, the

vendors, who are also the attestors in Ex.B.2, had wrongly included 0.01

cent more, which is beyond the lands available with the vendors of the

plaintiff. Aggrieved, the plaintiff filed appeal in AS.No.39/01 on the file

of Principal Sub Court, Vridhachalam. The Lower Appellate Court, after

reappraising the evidence, by judgment and decree dated 31.01.2002,

partly allowed the appeal and partly decreed the suit. The Lower

Appellate Court had come to the conclusion that as per the document in

Ex.B.3, 0.05.5 ares in S.No.68/1A1 belongs to the plaintiff, and the

common way that runs in S.No. 68/1A3 belongs to both the plaintiff and

the defendants, and the defendant shall not interfere in the possession of

the property by the plaintiff in S.No.68/1A1. Aggrieved by the judgment

and decree, in respect of one cent that was declared to be a common way,

the plaintiff has come up with the above appeal.

https://www.mhc.tn.gov.in/judis Substantial questions of law:

7. This Court by order dated 27.06.2023, admitted the second

appeal in the following substantial questions of law.

“1.Whether in law the courts below are right in

presuming knowledge of the vendors of the appellant as

per Section 115 of the Evidence Act with regard to the

recitals in Ex.B.2 sale deed merely because they attested

it, ignoring the ratio laid down in 1997 (2) LW 366?”

Submission by the learned counsel for the Appellant:

8. The learned counsel appearing for the appellants argued that

when admittedly the plaintiff has purchased an extent of 0.14 cents of

land through Ex.A.1, and there is no mention of any common way of

access in the sale deed executed, the plaintiff has proved the title to the

suit properties and are entitled for declaration and also for permanent

injunction.

https://www.mhc.tn.gov.in/judis

9. The learned counsel further contended that when the Lower

Appellate Court has given the finding that the plaintiff has purchased

0.01 cents in Ex.A.1. The Lower Appellate Court erroneously has set

apart one cent from out of the land purchased by the plaintiff and

declared it to be a common way of access to be enjoyed by the plaintiff

and the defendant.

10. The learned counsel further contended that the vendors of the

plaintiff were only attestors to the sale deed executed in favour of the

first defendant in Ex.B.2, which cannot in any way be put against the

case of the plaintiff. The learned counsel further contended that it is a

settled proposition of law that merely because the parties are attestors to

the documents, it cannot be taken that they had knowledge of the

contents of the deed and that cannot be put against them.

11. The learned counsel further argued that the Lower Appellate

Court, by placing reliance on the attestation made by the vendors of the https://www.mhc.tn.gov.in/judis plaintiff, had erroneously even though while partly allowing the appeal

has held against the plaintiff in respect of the 0.01 cents of land.

Therefore, the learned counsel further submitted that the finding of fact

arrived at by the Lower Appellate Court is not based on the materials

available on record, and therefore perverse, and sought for allowing the

second appeal.

12. Even though the names of the learned counsel for the

respondent were printed in the cause list, there is no appearance on the

side of the respondent.

Analysis:

13. Admittedly, an extent of 0.28 cents of land out of a total extent

of 0.80 cents in S.No.68/1 was purchased by Ramanujam and

Manonmani Ammal through a sale deed dated 31.01.1977. It is also

admitted case between the parties that there was an oral partition in the

year 1980 and in the oral partition, the properties were divided between https://www.mhc.tn.gov.in/judis Ramanujam and Manonmani Ammal. It is the case of the plaintiff that

out of the half of the lands allotted to the share of Ramanujam, his sons

Kamaraj and Nedumaran executed the sale deed in Ex.A.1 in favour of

the plaintiff by conveying an extent of 0.14 cents. However, it is the case

of the defendant that during the oral partition, 0.02 cents of land was

earmarked as a way of access for both the parties and only the balance

land measuring 0.26 cents was divided among the parties. As such, both

the parties were entitled only to 0.13 cents of land and both the parties

have a common right of way of access in the 0.02 cents of land.

14. It could be seen that when the lands were sold by Manonmani

Ammal in favour of the defendant in Ex.B.2 dated 02.02.1994, an extent

of 0.13 cents of land has been conveyed out of the total extent of 0.26

cents of land. It is also specifically mentioned in the document that the

party will have a common way of access out of 0.02 cents of land. It is

also pertinent to mention here that the sons of Ramanujam, that is

Kamaraj, Nedumaran had been the witnesses to the document, whereby https://www.mhc.tn.gov.in/judis 0.13 cents of land was conveyed to the defendant. Therefore, when the

sale in favour of the defendant was executed, the common way of access

in 0.02 cents of land was given to both the parties and without any denur

the parties have executed the document. Thereafter, when Kamaraj and

Nedumaran conveyed the properties in favour of the plaintiff through

sale deed in Ex.A.1 dated 07.03.1996, instead of conveying 0.13 cents of

land and also by giving rights in common way of access in the 0.02 cents

of land, they conveyed an extent of 0.14 cents, which is one cent more

than the land which was actually available with them.

15. It is also relevant to mention that in the document executed in

favour of the plaintiff in Ex.A.1, nearly 2 years after the sale deed

executed in favour of the defendant, it has been mentioned that the lands

out of an extent of 0.27 cents in Survey No.68/1A. When 0.14 cents of

land has been conveyed in Ex.A.1, then naturally the total extent should

have been 0.28 cents. From this, it could be seen that only 0.26 cents of

land was available after two cents was set apart for the common way of https://www.mhc.tn.gov.in/judis access, and out of which, when the land was sold to the defendant, it was

correctly mentioned as 0.13 cents. However, when the lands were

conveyed in favour of the plaintiff, the one cent being excess has been

added and conveyed in his favour.

16. However, from the evidence let in by the parties, it could be

easily seen that the access to 0.02 cents has been set apart by both the

vendors of the plaintiff and the defendant when there was an oral

partition executed in the year 1980, which was also mentioned in the sale

deed executed in favour of defendant in Ex.B.2. The Lower Appellate

Court has rightly found and had arrived at the finding of fact that the

plaintiff is entitled only for a declaration in respect of 0.13 cents of land,

that is 0.05.5 ares in S.No.68/1A1 and in so far as a common way of

access in 0.00.5 ares of land in S.No.68/1A3, both the plaintiff and the