Madras High Court
Perumal vs K.Sundaravadivelu on 13 November, 2024
Author: R. Hemalatha
Bench: R.Hemalatha
S.A.No.76 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.11.2024
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.76 of 2020 and
C.M.P.No.1650 of 2020
Perumal ...Appellant
Vs.
1. K.Sundaravadivelu
2. Thanigaivel ...
Respondents
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 17.10.2019 passed in A.S.No.83/2016, on the
file of the Principal Sub Court, Kancheepuram, reversing the decree and
judgment dated 03.08.2016 passed in O.S.No.23/2011, on the file of the
District Munsif cum Judicial Magistrate, Uthiramerur.
For Appellant : Mr.K.Govi Ganesan
For Respondents : Mr.Y.Jothish Chander
JUDGMENT
The plaintiff who filed the suit in O.S.No.23/2011 before the
District Munsif cum Judicial Magistrate, Uthiramerur, has filed the
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present second appeal.
2. The plaintiff filed the suit for declaration of his title to the
suit property, morefully described in the plaint schedule as a Punja land
in survey no.313/1 (subdivided into survey nos.313/1A2 and 313/1C) of
Thirupulivanam Village, Uthiramerur Taluk, Kancheepuram District ad-
measuring 0.96 cents. He also sought for a permanent injunction
restraining the defendants from interfering with his peaceful possession
and enjoyment of the suit property.
3. For the sake of convenience, the parties are referred to as per
their ranking in the trial court and at appropriate places, their rank in the
present second appeal would also be indicated.
4. The case of the plaintiff in a nutshell is as follows :
The plaintiff's father viz., Velu pillai purchased the suit
property measuring 0.48 cents from one Munusamy and his wife through
a registered sale deed, dated 09.03.1970 (Ex.A1). The brother of the
plaintiff's father Manickam pillai executed a Release deed, dated
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30.03.1970 (Ex.A2) in favour of the plaintiff's father Velu pillai with
regard to 0.48 cents in the same survey number. After the death of the
plaintiff's father, the plaintiff is in possession and enjoyment of the suit
property. Since the plaintiff was unable to cultivate the land as he was
residing away from the suit village, he engaged the services of his uncle
Narasimman to cultivate the suit property. The first defendant who is the
adjacent land owner is attempting to trespass into the suit property and
one such attempt was made on 18.03.2011. Hence, the suit.
5. The suit was resisted by the defendants on the following
grounds:
i. The suit property does not belong to the plaintiff as alleged by him.
ii. The entire extent of land in Survey numbers.313/1A2 and 313/1C
of Thirupulivanam village, Uthiramerur Taluk, Kancheepuram
District belonged to one Ramasamy Pillai and all the Revenue
records stood in his name.
iii. Ramasamy Pillai had two sons by names Munusamy Pillai and
Subramania Pillai and the first defendant purchased an extent of
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0.24 cents in both the survey numbers through a registered sale
deed, dated 11.12.1979 (Ex.B1). Subsequently, the remaining
extent of land in the same survey number was also purchased by
the first defendant from Ramasamy Pillai and others orally and that
the first defendant has been in possession and enjoyment of the suit
property for more than 30 years and thus he prescribed title by way
of adverse possession and prescription. Therefore, the defendants
prayed for dismissal of the suit.
6. On the basis of the above pleadings, the trial Court framed
the following issues:
i. Whether the plaintiff is entitled for a declaration and permanent
injunction as prayed for?
ii. Whether the plea of adverse possession by the defendants is
maintainable?
iii. To what relief is the plaintiff entitled?
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7. In the trial Court, the plaintiff examined himself and marked
Ex.A1 to Ex.A6. The first defendant examined himself and marked Ex.B1
to Ex.B20.
8. After full contest, the learned District Munsif cum Judicial
Magistrate, Uthiramerur, vide his decree and judgment dated 03.08.2016,
decreed the suit filed by the plaintiff on the following grounds:- :
i. The plaintiff's father purchased 0.48 cents in the suit property
through a sale deed, dated 09.03.1970 (Ex.A1).
ii. The brother of the plaintiff's father executed a Release deed, dated
30.03.1970 (Ex.A2) in favour of the plaintiff's father in respect of
the remaining extent of the land in the suit property.
iii. The plaintiff after after coming to know of the fact that Patta
(Ex.A3) stood in the name of the defendants, sent a request to the
District Collector (ExA4 and Ex.A5) to change patta in his name.
Thus the plaintiff has proved his title over the suit property.
iv. The defendant though has claimed adverse possession over the suit
property, has not proved the same by adducing acceptable
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evidence.
v. The defendants have not also proved their title over the suit
property.
9. Aggrieved over the decree and judgment passed by the trial
Court, the defendants filed an appeal in A.S.No.83/2016, before the
Principal Sub Court, Kancheepuram. The learned Principal Sub Judge,
after analysing the oral and documentary evidence adduced on both sides,
allowed the appeal and dismissed the suit filed by the plaintiff vide her
decree and judgment dated 17.10.2019, as against which the present
second appeal is filed by the plaintiff.
10. Heard Mr.K.Govi Ganesan, learned counsel for the
appellant and Mr.Y.Jothish Chander, learned counsel for the
respondents.
11. At the outset, it may be observed that the plaintiff sought
for a declaration of his title to the suit property through a sale deed, dated
09.03.1970 (Ex.A1) executed in favour of his father Velu pillai by one
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Munusamy and his wife. He also relies on the Release deed, dated
30.03.1970 (Ex.A2) executed by his father's brother Manickam pillai,
who claimed title to the remaining extent of 0.48 cents through an
unregistered Will dated 26.12.1962 executed by one Raghava pillai. It is
relevant to point out that the said Will dated 26.12.1962 has not been
filed by the plaintiff. Further, the plaintiff has not filed any documentary
evidence to show that Munusamy and his wife became entitled to 0.48
cents in the suit property. The parent documents have not been filed.
Further more, the boundary description in Ex.A1 and Ex.A2 are one and
the same. Therefore, the property conveyed through Ex.A2 is the same as
that of one found in Ex.A1. As already observed, the unregistered Will
dated 26.12.1962 allegedly executed by Raghava pillai in favour of
Manikam pillai has not been filed. Thus, the plaintiff has not proved his
title over the suit property.
12. The plaintiff's contention is that since he was away from the
suit village, he engaged service of his uncle Narasimman to cultivate the
suit property and that the Revenue Authorities had mistakenly issued
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patta in favour of the first defendant under UDR scheme. He therefore,
gave a representation to the District Collector, Kancheepuram for
cancelling Patta as is seen from Ex.A4. The result of the said
representation is not known. The plaintiff has not also adduced adangal
extract to show that he has been cultivating crops in the suit property.
Thus the plaintiff has not also proved his possession over the suit
property.
13. The defendants in the written statement had claimed title
over the suit property through a registered sale deed, dated 11.12.1979
(Ex.B1). According to them, the suit property originally belonged to one
Ramasamy pillai and the first defendant purchased an extent of 0.24
cents in both survey numbers 313/1A2 and 313/1C of Thirupulivanam
Village, Uthiramerur Taluk from Munusamy pillai and Subramania pillai,
sons of Ramasamy pillai. They have also averred that they prescribed title
by adverse possession over the suit property by long and continuous
possession for more than 30 years. When the defendants claimed
possession through a registered sale deed, they cannot claim adverse
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possession, since both the pleadings are contrary to each other, However,
the plaintiff who has filed the suit for declaration and injunction has to
prove his case and cannot take advantage of the weakness of the
defendants' case.
14. Therefore, I do not find any reason to interfere with the
decree and judgment passed by the first Appellate Court and the
substantial questions of law are answered against the appellant.
15. In the result,
i. The Second Appeal is dismissed. No costs. Consequently
connected miscellaneous petitions are closed.
ii. The decree and judgment dated 17.10.2019 passed in
A.S.No.83/2016, on the file of the Principal Sub Court,
Kancheepuram is upheld.
13.11.2024
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
vum
R. HEMALATHA, J.
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vum
To
1. The Principal Sub Court, Kancheepuram.
2. The District Munsif cum Judicial Magistrate,
Uthiramerur.
3. The Section Officer, VR Section,
Madras High Court, Chennai.
S.A.No.76 of 2020 and
13.11.2024
https://www.mhc.tn.gov.in/judis
