Madras High Court

Saravana Perumal vs Kuppusamy on 17 October, 2024

Author: V.Bhavani Subbaroyan

Bench: V.Bhavani Subbaroyan

                                                                                       S.A(MD)No.451 of 2006


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED :        17.10.2024

                                                         CORAM

                         THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                              S.A(MD)No.451 of 2006

                    Saravana Perumal                ... Appellant/Appellant/Plaintiff

                                                    Vs.

                    1.Kuppusamy
                    2.Ponnuthurai                   ... Respondents/Respondents/Defendants


                    Prayer: Second Appeal filed under Section 100 of the Code of Civil
                    Procedure against the judgment and decree, dated 26.09.2005 passed
                    in A.S.No.21 of 2001 on the file of the Sub Court, Ambasamuthiram,
                    confirming the judgment and decree dated 27.02.2001 passed in
                    O.S.No.67     of   1993   on   the    file   of   the   District     Munsif     Court,
                    Ambasamuthiram.


                                  For Appellant             : Mr.M.Ramachandran
                                                              for Mr.M.Siddharthan

                                  For Respondents           : Ms.V.Janaki Devi




                    1/20

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                                                                                S.A(MD)No.451 of 2006



                                                     JUDGMENT

The Judgments and decrees passed in O.S.No.67 of 1993

on the file of the District Munsif Court, Ambasamuthiram and in A.S.No.

21 of 2001 on the file of the Sub Court, Ambasamuthiram, are being

challenged in the present Second Appeal.

2.The appellant herein as plaintiff instituted a suit in

O.S.No.67 of 1993 on the file of the trial Court against the defendants

seeking for the relief of declaration, mandatory injunction and

demolition and claiming title in respect of the suit second schedule

property.

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

as, as described before the trial Court.

4.According to the plaintiff, originally the suit first schedule

property belonged to one Subbaiya Nadar, son of Kuppaiyandi Nadar.

On 29.07.1925, the said Subbaiya Nadar sold the suit first schedule

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property to Velu Nadar, S/o.Mada Nadar, and Ramaiya @ Rama Nadar,

S/o.Aathi Nadar by way of a registered sale deed. The plaintiff's

grandfather-Aathi Nadar had four sons, namely Rama Nadar @

Ramaiya Nadar, Vaikunda Nadar, Arumuga Nadar and Aathiyappa

Nadar. The plaintiff's father is Vaikunda Nadar. Rama Nadar @ Ramaiya

Nadar, Arumuga Nadar and Aathiyappa Nadar had no male issues.

According to the plaintiff, he was the only male legal heir to inherit the

property. With regard to the suit first schedule property, the said Velu

Nadar and Rama Nadar @ Ramaiya Nadar have divided the property

into two portions and the said Velu Nadar was enjoying the property at

the bottom portion and the said Rama Nadar @ Ramaiya Nadar was

enjoying the property on the upper portion. According to the plaintiff,

he has filed a sketch in which the upper portion was marked as 'AEFD',

which was the suit second schedule property of the first item and the

bottom portion was marked as 'EBCF', which was the suit second

schedule property of the second item. After the demise of the

ancestors, the plaintiff was in possession and enjoyment of the suit

second schedule property of the first item. The suit second schedule

property of items 1 & 2 is part of the suit first schedule property. Velu

Nadar was the great-grandfather of the first defendant and grandfather

of the second defendant. The defendants 1 and 2 are in possession and

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enjoyment of the suit second schedule property of the second item.

While so, in the year 1991, the defendants 1 and 2 started slowly

encroaching the suit second schedule property of the first item and the

plaintiff tried to prevent them from constructing the compound wall.

While so, in the year 1992, the defendants constructed a building in

land belonging to the plaintiff by encroaching upon the suit schedule

property. Though the plaintiff has made efforts to prevent the

defendants from constructing, they also constructed a compound wall

in the year 1993. Hence, the plaintiff has filed the said suit for the

abovestated relief.

5.The defendants had filed a written statement stating that

the plaintiff's grandfather-Aathi Nadar had four sons was not accepted

and stated that he had five sons. Further, the plaintiff's grandfather

had daughters. The said Arumuga Nadar had four daughters and the

four daughters had male heirs. The submission of the plaintiff that he

was the only male legal heir was not proved. The plaintiff's father-

Vaikunda Nadar had two wives and the plaintiff was the son of the

second wife. The father of the plaintiff's first wife had children and they

are alive. The plaintiff alone was in possession and enjoyment of the

suit property was not accepted. All the legal heirs of Aathi Nadar are

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entitled for their shares. The plaintiff has no right to file the suit

exclusively. The plaintiff has not impleaded the necessary parties and

the suit is bad for non-joinder of necessary parties. It was an admitted

fact that the suit first schedule property was purchased by way of a

registered sale deed by Velu Nadar and Ramiaya Nadar and they were

in joint possession and enjoyment of the same and thereafter, the said

Velu Nadar and Aathi Nadar's elder son, namely Ramiaya Nadar divided

the suit properties into two portions and enjoying the same. According

to the defendants, in the plaintiff's sketch, the portion which was

marked as 'AEFD' portion was not belong to Aathi Nadar's son Ramiaya

Nadar. 'AEFD' portion was the suit first schedule property of the bottom

portion. The remaining part of the suit first schedule property was

situated in the top portion of 'AEFD'. In the plaintiff's sketch, the

portion which was marked as 'EBCF' portion was the separate ancestral

property of the defendants grandfather. The said portion was not

purchased through the sale deed, dated 29.07.1925. The portion which

was marked as 'EF' on the side of the western side East 7

Thachumulam portion was not purchased by the plaintiff as per the

sale deed, dated 29.07.1925. In view of the above, the plaintiff was

not in a position to state where the property purchased is situated as

per the sale deed, dated 29.07.1925. 'AE' is the portion, which are

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belonging to the defendants' ancestors who have purchased the

property from the said document. In 'AE' portion, the first defendant's

grandfather and the second defendant's father had constructed a house

in the year 1942 itself and they are in possession and enjoyment of the

same. Further, the allegation made by the plaintiff that the defendants

have tried to encroach upon the property of the plaintiff from the year

1992 are false and the defendants had constructed a house worth

about a sum of Rs.70,000/- and pleaded that the plaintiff has to pay a

sum of Rs.10,000/- as compensatory cost and prayed for dismissal of

the suit.

6.Before the trial Court, on the side of the plaintiff, he

himself was examined as P.W.1 and P.W.2 & P.W.3 were examined and

Exs.A1 & A2 were marked. On the side of the defendants, the first

defendant was examined as D.W.1 and Exs.B.1 to B.3 were marked.

7.On the basis of the rival pleadings made on either side,

the trial Court, after framing necessary issues and after evaluating both

the oral and documentary evidence, has dismissed the suit.

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8.Aggrieved by the Judgment and decree passed by the

trial Court, the plaintiff herein as appellant, had filed an Appeal Suit in

A.S.No.21 of 2001 on the file of the first Appellate Court.

9.The first Appellate Court, after hearing both sides and

upon reappraising the evidence available on record, has dismissed the

appeal and confirmed the Judgment and decree passed by the trial

Court.

10.Challenging the said Judgments and decrees passed by

the Courts below, the present Second Appeal has been preferred at the

instance of the plaintiff as appellant.

11.At the time of admitting the present second appeal, this

Court had framed the following substantial questions of law for

consideration:

'1) Whether the Courts below are right in dismissing

the suit when there is no contra evidence from the

defendants to claim title to the suit property?

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2. Whether the learned Sub Judge has got

jurisdiction to go beyond the scope of the pleadings of the

plaintiff and give his own findings in his judgment?

3. Whether the judgment and decree of the Courts

below are sustainable in law when the Courts below have

not taken into consideration the plea of adverse

possession claimed by the defendants?

4. Whether the Courts have considered about the

objection raised by the plaintiff with regard to the

Advocate Commissioner's report?

5. Whether the Courts below are justified in

dismissing the suit when the defendants have admitted

the relationship, execution of Ex.A.1, partition between

the brothers, in the absence of contra evidence to prove

the defendant's title and possession?'

12.The learned counsel appearing for the appellant/plaintiff

would submit that the Courts below had not considered and violated

the Transfer of Property Act, 1882 under Section 6(a), wherein the

appellant as the legal heir of the suit property and they had not taken

into account the provision of Transfer of Property Act under Section 19

vested interest and Section 20 of the contingent interest. The Courts

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below have admitted the fact that the legal heirs of Arumuga Nadar

had sold some property to a third person, but that deed does not throw

light of any lineage of Aathi Nadar, hence, those legal heirs are not

admitted as a Aathi Nadar lineage and to be registered. Rama Nadar

and the first defendant's grandfather had jointly purchased the suit

property was admitted by the defendants. Hence, the Courts below had

failed to note that the appellant had been in possession and enjoyment

of the suit property which was encroached on by the defendants. When

there is a dispute between the members of the plaintiff's family with

regard to the suit property, the Courts below without any valid findings

had held that the plaintiff had not come with clean hands, as he failed

to prove that he was the only male legal heir. The Advocate

Commissioner's report is not a final one to decide in favour the

defendants. The learned counsel appearing for the appellant would

further submit that the second appeal should be allowed on the

grounds of appeal and the questions of law framed.

13.The learned counsel appearing for the

respondents/defendants would submit that the suit filed for

declaration, mandatory injunction and for demolishing the suit property

of the defendants has been rightly considered by both the Courts below

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and dismissed them. In the written statement, even though the

defendants admitted the relationship between inter parties, but denied

title and encroachment in the suit second schedule. Issues were

framed, Exs.A1 & A.2 were marked on the side of the plaintiff and

Exs.B.1 and B.2 were marked on the side of the defendants and

Exs.C.1 to C.3 have been considered by the Courts below elaborately,

the trial Court dismissed the suit without costs and in the appeal suit,

the Appellate Court dismissed the appeal with costs. It is found that

regarding the common ancestor, one Mada Nada had son Velu Nadar

and his son Thangasamy Nadar, whose children are Kuppiaha and

Kuppusamy. Kuppusamy is the first defendant and the said Kuppiaha's

son is Ponnudurai is the second defendant. Regarding common

ancestor Aathi Nadar, his sons are Rama Nadar, Vaikunda Nadar,

Arumuga Nadar, Aathiyappa Nadar and another son name not known

and Vaikunda Nadar's son is Saravana Perumal, who is the plaintiff

herein and according to the defendants, the plaintiff is the second

wife's son of Vaikunda Nagar. The said Arumuga Nadar and his wife

Piramu had four daughters, namely Vadivammal, Thangammal,

Ramalakshmi and Annathai and the genealogy tree would prove that

the plaintiff is not the sole legal heir in his branch and the case has to

be dismissed on the ground of non-joinder of other legal heirs, who are

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necessary parties which is fatal to the case and also he cannot claim

absolute right over the entire property which was purchased by two

persons having half share each.

14.The learned counsel appearing for the

respondents/defendants would further submit that there are other legal

heirs and the plaintiff has not impleaded them, the suit is bad for non-

joinder of necessary parties. The plaintiff himself has admitted that the

suit property was purchased by two persons, namely Velu Nadar and

Ramiaya Nadar. He cannot claim exclusive title over the property

without impleading all the legal heirs of Ramaiya Nadar. As already

stated the suit is bad for not only the non-joinder of necessary parties

but also the exclusive prayer for declaration cannot be granted to the

plaintiff, because he had not pleaded or proved his exclusive title to the

suit property by way of partition, release deed or settlement. The

Commissioner's report would prove that no encroachment has been

made by the defendants and the house of the defendants has been

constructed at an earlier point of time and there is no cause of action

arising for the suit. As the plaintiff has not proved his exclusive title to

the suit property, the suit for declaration is not maintainable and liable

to be dismissed and prayed for dismissal of the second appeal.

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15.Heard the learned counsel appearing for the appellant

and the learned counsel appearing for the respondents and perused

the materials available on record.

16.According to the plaintiff, originally the suit first

schedule property belonged to one Subbaiya Nadar, son of Kuppaiyandi

Nadar. On 29.07.1925, the said Subbaiya Nadar sold the suit first

schedule property to Velu Nadar, S/o.Mada Nadar, and Ramaiya @

Rama Nadar, S/o.Aathi Nadar by way of a registered sale deed. The

plaintiff's grandfather-Aathi Nadar had four sons, namely Rama Nadar

@ Ramaiya Nadar, Vaikunda Nadar, Arumuga Nadar and Aathiyappa