Madras High Court
M.R.M.Mohammed Hanifa (Died) vs K.Arumugam on 23 October, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A.No.1945 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.10.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A.No.1945 of 2003
M.R.M.Mohammed Hanifa (Died) ... Plaintiff/Respondent
2.Hajji Fathima Appellant
3.Asi Fathima
4.Mohideen Abdul Kadar
(Appellants 2 to 4 and third respondent
are brought on record as LRs of the
deceased Sole appellant vide Court
order dated 01.02.2024 made in
C.M.P(MD)No.3234, 3236 and 3237 of 2023)
Vs.
1.K.Arumugam
2.A.Pichammal (Died) ...Defendants/Appellants
3.Ali Fathima Respondents
4.Mariappan
5.Mokkammal
6.Murugan
7.Subramanian
(Respondents 4 to 7 are brought
on record as LRs of the deceased
2nd respondent vide Court order
dated 01.02.2024 made in
C.M.P(MD)No.5609 of 2023)
1/13
https://www.mhc.tn.gov.in/judis
S.A.No.1945 of 2003
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 16.10.2001 made
in A.S.No.50 of 2001, on the file of the Additional Sub-Court, Tenkasi
reversing the judgment and decree dated 20.04.2001 made in O.S.No.
250 of 1996, on the file of the Additional District Munsif Court,
Tenkasi.
For Appellants : Mr.P.Thirumahilmaran
For Respondents : Mr.V.Janaki Devi
for M/s.N.Sylappa Kalyan
JUDGMENT
The appellant, who is the plaintiff in the suit, filed the present
appeal against the judgment and decree, dated 16.10.2001 made in
A.S.No.50 of 2001, on the file of the Additional Sub-Court, Tenkasi
reversing the judgment and decree, dated 20.04.2001 made in O.S.No.
250 of 1996, on the file of the Additional District Munsif Court,
Tenkasi.
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.
https://www.mhc.tn.gov.in/judis
3. The plaintiff, who is the appellant in the present appeal, filed
a suit in O.S.No.250 of 1996 before the Additional District Munsif
Court, Tenkasi, for declaration that the second schedule property
belongs to the plaintiff and for recovery of possession and also the
mandatory injunction.
4. On analyzing documentary and oral evidence, the learned
Additional District Munsif, Tenkasi has allowed the suit by granting
declaration, recovery of possession and mandatory injunction.
Aggrieved by the judgment and decree of the trial Court, the
defendants filed an appeal before the Sub-Court, Tenkasi which is
taken on file in A.S.No.50 of 2001. Considering the pleadings
evidences, judgment and decree of the trial Court, the learned Sub-
Judge, Tenkasi, has allowed the appeal by setting aside the judgment
and decree of the trial Court. Aggrieved over the same, the plaintiff
has filed the present appeal. Pending the appeal, the appellant died
and his legal heirs were impleaded.
5. The case set-up by the plaintiff in the plaint is as under:-
The first schedule property originally belongs to Muthusami
Naidu from whom the plaintiff's father had purchased it on 27.07.1941
and he is in enjoyment of the same. He died before 20 years leaving
https://www.mhc.tn.gov.in/judis
the plaintiff and other children, who partitioned his properties on
09.07.1977. Through the registered partition deed, the first schedule
was allotted to the share of the plaintiff. On the western side of the
first schedule, the defendants own property. Taking advantage of the
fact that the first schedule is a vacant site, on 14.04.1996, when the
plaintiff had gone to Madaras, the defendant encroached a portion of
it shown as second schedule and started construction. When on
29.04.1996, the plaintiff learnt about this, he returned. He asked the
defendants and then reported to elders and then measured it with the
help of surveyor, who found out the encroachment. Then the
defendant agreed to remove the encroachment within a week. But
again on 22.06.1996 onwards he is attempting to continue the
construction. If done so, the plaintiff would be put to irreparable loss.
Hence, the suit has been filed for a declaration that the second
schedule property belongs to the plaintiff and for recovery of
possession and mandatory injunction.
6. The defence set-up by the defendant in the written statement
is as under:-
The suit is not maintainable. It has been filed with an intention
of purchasing the defendant's property at low sale consideration. The
property does not exist on land as per measurement in the plaint.
https://www.mhc.tn.gov.in/judis
Second schedule property is an imaginary one. After construction of
the property, the plaintiff served the injunction order without leaving
the documents copy. Though the plan is incorrect, the measurement
are in excess of the document. There is no document dated
09.07.1977. But, the document dated 09.06.1997 has been filed
containing 5-5/8 cents. But the extent comes to 5.3986 cents as per
measurement. Plaintiff's property is south-west of the defendants
property. On 14.04.1996 it is not true that the plaintiff went to his
relatives place. It is not true that the defendants encroached the
second schedule property on 14.04.1996. Surveyor did not say that
there is an encroachment. The defendant has been constructing for
one month to the knowledge of the plaintiff. In the plaint and plan, the
land situated on the south eastern side has been suppressed. Even if
it is assumed that plaintiff's land lacks three feet east-west, it would
be encroached by the eastern side owner viz., B.K.S.Abdul Khadar.
So, he is a necessary party. The defendant is a poor washer man. The
suit has been filed for defaming him. The defendant is entitled to 6/1
feet east-west. He has constructed only 12 feet and has left open
space of 1/8 C C east of his eastern wall. The sun share projects only
in the defendant's eastern space. Cause of action is imaginary. Court
fee paid is incorrect. In fact the defendant is reconstructing the old
house in the same place. So he has also prescribed title through
https://www.mhc.tn.gov.in/judis
adverse possession. With an intention of preventing the defendant
from using the eastern pathway, the suit has been filed. Hence, he
prayed for dismissal of the suit.
7. Before the trial Court, the plaintiff himself examined as P.W.1
and Exs.P1 to P4 were marked. The first defendant was examined as
D.W.1 and Ex.D1 & Ex.D2 were marked. Court documents Ex.C1 to
Ex.C3 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 decreed the suit by granting
declaration, recovery possession and mandatory injunction in favour of
the plaintiff.
9. Aggrieved by the judgment and decree of the trial Court, the
defendants filed an appeal before the Sub-Court, Tenkasi, which is
taken on file in A.S.No.50 of 2001.
10. The first appellate Court, after hearing both sides and upon
re-appreciating the evidence available on record, had allowed the
appeal by setting aside the judgment and decree of the trial Court.
https://www.mhc.tn.gov.in/judis
11. Challenging the said judgment and decree passed by the first
appellate Court, the plaintiff has 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:
"i) When admittedly the western boundary
holder does not make any trespass and the western
boundary of A schedule property is a Wall, which was
in existence for more than 20 years whether learned
Judge is right in dismissing the suit for non-joinder of
necessary party for not impleading the western owner
of the 'A' schedule property?
(ii) Whether the learned Additional Subordinate
Judge is right in tracing the judgment on the plea of
estoppel against the title especially when the plaintiff
has filed the suit on the basis of declaration of title,
recovery of possession and for mandatory injunction?
13. The learned counsel appearing for the appellant would
submits that the first appellate Court failed to note that it is an
admitted fact that on the eastern side, boundary Wall is there for more
than 20 years and when there is no dispute on that side, the findings
of the first appellate Court that he ought to have been added as a
https://www.mhc.tn.gov.in/judis
party defendant and that the suit is bad for non-joinder of necessary
party is therefore, totally erroneous. The learned first appellate Court
pre-judged the entire issue by observing that the 'A' schedule and 'B'
schedule properties were not properly described and the learned
Judge on assumption that on the western side of B-schedule property
the boundary was not properly described is erroneous because A-
schedule is for the whole property and B-schedule is only forming part
of A-schedule only and eastern end of western side of the B-schedule
property can only be described as a remaining portion of A-schedule
property and therefore, the entire judgment of the learned judge is
vitiated because of the wrong assumption of the facts.
14. It is his further contention that the learned first appellate
Court failed to note that the plaintiff has produced his title deed of the
year 1941 and also subsequent period in 1970 and the defendants
have come forward with the documents, which are more than 10 years
after the plaintiff document. In such circumstances, when admittedly
defendant had purchased the property after the plaintiff's
predecessors-in-title and the partition has taken place, the observation
of the learned Judge is therefore erroneous. The defendants
themselves admitted that at the time of purchase, only a small hut was
there in the property and after the purchase only they recently
https://www.mhc.tn.gov.in/judis
demolished the hut and had put up a bigger house. The first appellate
Court failed to note that when the plaintiff has filed a suit on the basis
of title, acquiescence even it if is proved will not divest the title.
Hence, he prayed for allowing the appeal.
15. The learned counsel appearing for the respondents would
submit that the first appellate Court after hearing both sides and upon
re-appreciating the evidence available on record, had rightly allowed
appeal and there is no interference is required. 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.
17 The plaintiff filed a Suit for declaration, recovery of
possession and for mandatory injunction, in respect of the suit 2nd
schedule property. The first schedule property originally belongs to
one Muthusami Naidu from whom the plaintiff's father had purchased
on 27.07.1941 and he is in enjoyment of the same. He died before 20
years leaving the plaintiff and other children, who partitioned his
properties on 09.07.1977. The eastern common wall forms the
boundary for the first schedule. The northern boundary is also road
https://www.mhc.tn.gov.in/judis
property. There is no dispute over the south boundary which is a
common lane. Further, there is no dispute over the first part of the
western boundary situated in the northern side. Only North-west
boundary, which meets the defendants property is in dispute.
18. The plaintiff, in his examination-in-chief, had deposed that
there was a permanent wall in the eastern side of his property, which
is the western house wall of Abdul Khadar Sahib. Abdul Khadar Sahib
had constructed his house before 20 or 25 years. But, later, in cross,
he deposed that the said wall is a common wall between Abdul Khadar
Sahib and himself and the breadth of the wall is 1-1/4 ft. Further, he
deposed that there is no access for the defendant from south to east.
At the same time, in the Commissioner's Report, it has been clearly
stated that there were symptoms of using the pathway and the same
cannot be simply brushed aside. No doubt, it is for the plaintiff to
prove his case. But, the trial Court shift the burden on the defendant
to prove his case, which cannot be accepted.
19. Be that as it may, earlier, while hearing the Second Appeal,
this Court, taking into consideration the facts and circumstances of
the case, was of the opinion to appoint Amicus curiae to assist the
Court to find out the real position of the Suit schedule properties.
https://www.mhc.tn.gov.in/judis
Accordingly, Mr.R.Ragavendran, learned Government Advocate, was
appointed as an amicus curiae, and he was directed to measure the
entire suit schedule properties with the help of surveyor and file a
report along with sketch. On a perusal of the report of the Amicus
Curiae, it has been revealed that the Sub-Inspector of Surveyor, Taluk
Survey, Tenkasi Taluk, filed a report stating that on 30.09.2024, after
issuing notice to the parties concerned, conducted the survey on
01.10.2024. As per Document No.667/1997, the four sons of
Mohideen Abdul Kadhar Sahib, partitioned the properties among
themselves. Out of which, an extent of 3-5/8 cents of vacant land
belonged to one Mohammed Hanifa. The Document No.770/1986 and
Document No.19/1987 belonged to the defendant. As per the said
Document, including east-west portion, 70 Sq.meter (1.72 cent), there
is a small building and vacant land and that there is no encroachment.
A sketch has also been enclosed along with the report. From the
above report of the Sub-Inspector of Surveyor, Taluk Survey, Tenkasi
Taluk, it is clear that there is no encroachment made by the
defendants. In view of the above discussion, the questions of law are
answered in favour of the defendants.
https://www.mhc.tn.gov.in/judis
20. In the result, the Second Appeal is dismissed, confirming the
Judgment and Decree passed in A.S.No.50 of 2001, by the learned
Additional Sub-Judge, Tenkasi, reversing the judgment and decree
passed in O.S.No.250 of 1996, by the learned Additional District
Munsif, Tenkasi. However, there shall be no order as to costs.
23.10.2024
Index : Yes/No
Internet : Yes/No
am
To
1.The Additional Sub-Court,
Tenkasi.
2.The Additional District Munsif Court,
Tenkasi.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
V.BHAVANI SUBBAROYAN, J.
am
Judgment made in
23.10.2024
https://www.mhc.tn.gov.in/judis
