Madras High Court
Sivarajakani (Died) vs Kasiammal (Died) on 21 October, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A(MD)No.233 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.10.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.233 of 2006
1.Sivarajakani (Died)
2.Perumal Nadar (Died)
3.Kothandaram
(Memo dated 12.08.2024 filed on 20.08.2024
in USR No.29869 is recorded as
2nd appellant died and third appellant,
who is already on record is recorded as LR
of the deceased 2nd appellant, vide Court
order dated 23.08.2024 made in
S.A(MD)No.233 of 2006)
(Memo dated 12.08.2024 filed on 20.08.2024
in USR No.29986 is recorded as R1 died
and RR2, 5 to 8, who are already on record
are recorded as LRs of the deceased R1,
vide Court order dated 23.08.2024 made
in S.A(MD)No.233 of 2006) ... Defendants/Appellants/
Appellants
Vs.
1.Kasiammal (Died)
2.Rajagopal
3.Durairaj (Died)
4.Jeyaseeli
5.Alagu Ratha
(3rd appellant impleaded as the
legal representative of the
deceased first appellant as per
order dated 21.07.2015 made
in M.P.No.2012 in S.A.No.233/2006)
1/14
https://www.mhc.tn.gov.in/judis
S.A(MD)No.233 of 2006
6.Pattu Kumar ... Plaintiffs/Respondents/
Respondents
7.Suyambukani
8.Minor.Raman @ Lakshmanaraj
(Minor R8 represented through his
mother/guardian R7 herein)
(Respondents 7 and 8 are brought
on records as LRs of the deceased
3rd respondent vide Court order
dated 05.07.2023 made in
C.M.P(MD)Nos.10503 to 10505/2016)
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree passed in A.S.No.80 of
2005, on the file of the Sub-Court, Tuticorin dated 28.07.2005
confirming the judgment and decree passed in O.S.No.2 of 2002 on the
file of the Additional District Munsif Court, Tuticorin dated
29.07.2003.
For Appellants : Mr.M.P.Senthil
For R2 : Mr.D.Venkadesh
For R4, R7 & R8 : Mrs.P.Jessi Jeeva Priya
JUDGMENT
The appellants, who are the defendants in the suit, filed the
present appeal against the judgment and decree, dated 28.07.2005
made in A.S.No.80 of 2005, on the file of the Sub-Court, Tuticorin
confirming the judgment and decree, dated 29.07.2003 made in
O.S.No.2 of 2002, on the file of the Additional District Munsif Court,
Tuticorin.
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2. For the sake of convenience, the appellants and the
respondents shall be referred to as per their ranks in the plaint, as the
defendants and plaintiffs respectively.
3. The plaintiffs, who are the respondents in the present appeal,
filed a suit in O.S.No.2 of 2002 before the Additional District Munsif
Court, Tuticorin, for declaration that the plaintiffs are the present
owner of the suit property and consequential permanent injunction
restraining the defendants from interfering into the plaintiffs peaceful
possession and enjoyment of the suit property and for costs of the suit.
4. On analyzing documentary and oral evidence, the learned
Additional District Munsif, Tuticorin has allowed the suit by granting
declaration and permanent injunction. Aggrieved by the judgment
and decree of the trial Court, the defendants filed an appeal before the
Sub-Court, Tuticorin which is taken on file in A.S.No.80 of 2005.
Considering the pleadings evidences, judgment and decree of the trial
Court, the learned Sub-Judge, Tuticorin has dismissed the appeal by
confirming the judgment and decree of the trial Court. Aggrieved
over the same, the defendants have filed the present appeal.
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5. The case set-up by the plaintiffs in the plaint is as under:-
The schedule mentioned property and some other properties
were originally belonged to Mayandi Nadar, who sold the suit property
and the adjacent property on 13.06.1927 through a registered sale
deed in favour of Perumal Nadar. From the date of the said sale deed,
the Perumal Nadar was in possession and enjoyment of the suit
property and the adjoining properties and Perumal nadar died 40
years back as Hindu intestate leaving 4 sons and one daughter viz.,
Raja Nadar, Sudalaimani Nadar, Mookandi Nadar, Maharaja Nadar
and Sundaram Nadar as his legal heir. Perumal Nadar wife also died
35 years back leaving the above said persons as her legal heirs. After
the death of the Perumal Nadar and his wife, nearly 30 years back
there was an oral partition, the suit property was allotted to the share
of Raja Nadar. The said Raja Nadar constructed a house on the
southern side of the suit property, kept vacant the northern side and
used the same as a backyard for the house for the past 30 years. The
said Raja Nadar died in the month of December 1989 leaving the
plaintiffs as his legal heirs. For the past 30 years, the plaintiffs are
residing in the suit property as an absolute owner without disturbance
or hindrance from anybody else. The defendants have no right or title
interest over the suit property. On 24.12.2001 the defendants tried to
interfere into the northern side of the suit property and the same was
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prevented by the plaintiffs with the help of the elders. The plaintiffs
are in open and notorious possession with the knowledge of the
defendants for more than 30 years, in the suit properties. Hence, the
plaintiffs are enjoying the suit property by way of adverse possession
also. The defendants are very powerful person and very rich man in
the locality and they are having money power and man power on their
hands. Hence, this suit is filed for declaration, permanent injunction
and for costs.
6. The defence set-up by the defendants in the written statement
is as under:-
The defendants denied the allegations made by the plaintiffs in
the plaint. On the northerm side of the plaintiff's house there is a
vacant plot. On the southern side of the plaintiff's house there is a
house. The above vacant site and the house belongs to the first
defendant father Rama Nadar which is an ancestral property. After
the demise of Rama Nadar, the only son of the said Rama Nadar, the
first defendant herein is having right in the house as well as in the
vacant land. The northern side of the schedule mentioned property
there is a tiled roof building which was used by the first defendant
father as a godown to store Jaggery, and now the same was with the
possession of the first defendant. The land situated on the northern
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side of the plaintiff's does not belongs to plaintiffs, Raja Nadar or his
father Perumal Nadar. They have no enjoyment in the above property.
The East-West and northern side of the plaintiffs house, land to an
extent of 0.02.75 hectare which was sub divided as 224/3 and patta
also issued in favour of the first defendant and the first defendant
alone is in enjoyment of the said property. Hence, they seek for
dismissal of the suit.
7. Before the trial Court, on behalf of the plaintiff, the 6th
plaintiff was examined as P.W.1 and Exs.P1 to P5 were marked. On the
side of the defendants, two witnesses were examined as D.W.1 and
D.W.2 and Ex.D1 to Ex.D7 were marked. Court documents Ex.C1 and
Ex.C2 were marked.
8. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both
oral and documentary evidence, had allowed the suit by granting
declaration and permanent injunction in favour of the plaintiffs.
9. Aggrieved by the judgment and decree of the trial Court, the
defendants filed an appeal before the Sub-Court, Tuticorin which is
taken on file in A.S.No.80 of 2005.
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10. The first appellate Court, after hearing both sides and upon
re-appreciating the evidence available on record, had dismissed the
appeal by confriming the judgment and decree of the trial Court.
11. Challenging the said concurrent judgment and decree
passed by the first appellate Court, the defendants have filed the
present appeal.
12. At the time of admitting the present second appeal, this
Court had formulated the following substantial questions of law for
consideration:
"1) Whether the Courts below erred in law in
holding the title over the property in favour of the
plaintiffs merely on Ex.A1 sale deed of the year 1927,
which does not bear any survey number to identify the
suit property?
2) Whether the Courts below erred in law in over
looking the failure on the part of plaintiffs in
describing the suit property sufficiently as provided
under Order 7 Rule 3 of the Civil Procedure Code?
3) Whether the Courts below erred in law in not
considering the settlement patta and other revenue
records produced by the defendants in proof of their
claim over the title and possession?
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13. The learned counsel appearing for the appellants would
submit that the Courts below erred in law in holding that the schedule
property belong to the plaintiffs on the basis of Ex.A1, when it is not
proved by him that it includes the suit schedule property. The Courts
below erred in law on relying upon the Ex.A1 when neither in Ex.A1
nor the schedule to the plaint describes the suit property by survey
number. The Courts below erred in law in overlooking the patta and
other revenue records produced by the defendants being documents
Ex.B1 to B7 corroborating the evidence of D.W.1 and D.W.2. The
Courts below failed to consider that the suit property was originally a
Poramboke land and by long possession of the Defendants and their
predecessor in title, patta was issued under settlement proceedings.
14. He further submitted that the Courts below erred in law in
holding that the patta does not restore the title upon the defendants
especially when the plaintiffs does not prove a better title by any
positive or acceptable evidence. The courts below erred in law in
assuming that the boundary as shown in the documents could be
identifiable especially when said document was executed 70 years
above. The Courts below erred in law in overlooking that the
miserably failed to prove that the suit property was allotted to them in
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a partition deed and no piece of paper was produced to prove that the
alleged partition took place and the property was allotted to plaintiffs
share. The Courts below overlooked that even assuming that the
Ex.A1 includes the suit property same shall not create any right in
respect of suit property when executor himself had no right over the
suit property. The Courts below overlooked that the plaintiffs have not
established by documents or otherwise that they enjoyed the suit
property at any point of time since 1927. Hence prayed for allowing
the appeal.
15. The learned counsel appearing for the respondents would
submit that the trial Court and the first appellate Court after hearing
both sides and upon re-appreciating the evidence available on record,
had rightly decreed the suit and also the appeal suit and there is no
interference is required in the judgment and decree of the trial Court
and the first appellate Court. Hence, he prayed for dismissing the
appeal.
16. I have heard the learned counsel for the appellants and the
respondents and also perused the materials on record carefully.
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17. On perusal of Ex.A1 document, dated 13.06.1927 which is
executed by one Mayandi Nadar in favour of Perumal Nadar, the
description of the property found as follows:-
"ghisaq;Nfhl;il b];l;hpf;l>; jpUr;nre;J}H rg;b>
fhyq;FbapUg;G fpuhkk; ngUkhs;Guj;jpy; kid tPl;Lf;F vy;if
fpoNky; ghijf;Fk; njw;F> Kj;ijah ehlhhplk; fpiuak; thq;fpa
Nahthd; tPl;Lf;Fk; Nkw;F uhkehlhH tPl;Lf;Fk; nghJ ghijf;Fk;
tlf;F vd; ifapUg;G tPl;Lf;Fk; fpof;F ,jpYs;s kid jr;RKok;
fpoNky; 30 njd;tly; 40 mjpy; fl;bapUf;fpw fy;fl;L Xiy $iu
tPLk; Nky;Gwk; $lKk;> fPo;Gwk; $lKk; eil Kw;wk; nfhy;iyAk;
nfhy;iyapy; ,Uf;fpw rfy tp\aq;fSk; nghJtpy; 3 Mf vd;
gq;F 1 cs;sJk; tpguk; rhp."
Even though, the document does not reveals the survey number but
the 4 boundaries would reveal the suit property and adjacent
properties. It is very ancient document that is in the year of 1927.
Therefore, on the northern side of the Ramanadar house, there is a
common pathway and further on the northern side is the plaintiffs
property as per Ex.A1. According to Ex.A1, plaintiff are having 1/3rd
share in that property. It was taken into account the plaintiffs having
East-West 10 Thatchi Mulam North East 40 Thatchu Mulam which is
equal to 25 feet + 100 feet. Therefore, the plaintiff proved their title
by way of Ex.A1. The defendants claiming the right only through
Ramanadar. The defendant has not submitted any registered
document to prove that he is having property in the schedule
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mentioned property. The sole reliance of the defendants are that the
patta issued in favour of the first defendant that too during 1900. The
learned District Munsif rightly come to a conclusion that patta would
not confer title to the defendant. On the basis of evidence and
documents, the plaintiffs prove that they are in possession of the
schedule mentioned property. But the defendants claim their right
that they are having vacant land on the western side and the northern
side of the plaintiffs house. During the examination of D.W.1 stated
that the property belongs to Rama Nadar and he acquired the same by
way of inheritance. So it is an ancestral property of Rama Nadar. No
document shows that Rama Nadar had owned that property. On the
other hand Ex.A1 document would reveal that the said Rama Nadar is
having only house on the southern side of the plaintiffs property.
18. Regarding the first question of law, it is to be seen that the
property vested with the plaintiffs based on the Ex.A1 sale deed,
which was executed by one Mayandi Nadar in favour of Perumal
Nadar on 13.06.1927. In the said document there was a clear
schedule has been mentioned through which the property could be
identifiable as the plaintiffs and defendants did not deny such
existence of the boundaries are not there on the ground. Hence, the
Court has correctly held that the title over the property in favour of
the plaintiffs in Ex.A1 is valid.
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19. Regarding the second question of law, it has been clearly
stated that property in question is bounded by south of East-West
pathway west of house of one Yovan purchased from one Muthaiya
Nadar, North of Rama Nadar's house and public pathway and East of
plaintiff's house. Even though, the document does not reveals the
survey number, but the 4 boundaries would reveal the suit property
and adjacent properties. Therefore, as per Order 7 Rule 3 of the Civil
Procedure code, the plaintiffs have clearly described the suit property
sufficiently.
20. Regarding the third question of law, the defendant has not
submitted any registered document to prove that he is having landed
property in the schedule mentioned property. The sole reliance of the
defendants are that the patta issued in favour of the first defendant
that too during 1900, the patta would not confer title to the
defendants. On the basis of the evidence and documents the plaintiffs
proved that they are in possession of the schedule mentioned property.
The sketch also proves the claim made by the plaintiffs as the land in
dispute is surrounded by plaintiffs family members and the defendants
land is situated far away from the disputed property. In view of the
above, the substantial questions of law are answered in favour of the
respondents as against the appellants.
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21. In the result, the Second Appeal is dismissed by confirming
the judgment and decree, dated 28.07.2005 made in A.S.No.80 of
2024, on the file of the Sub-Court, Tuticorin and dated 29.07.2003
made in O.S.No.2 of 2002, on the file of the Additional District Munsif
Court, Tuticorin. However, there shall be no order as to costs.
21.10.2024
Index : Yes/No
Internet : Yes/No
am
To
1.The Sub-Court,
Tuticorin.
2.The Additional District Munsif Court,
Tuticorin.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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V.BHAVANI SUBBAROYAN, J.
am
Judgment made in
21.10.2024
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