Madras High Court
Arjunan (Died) vs Dhanapal on 4 September, 2024
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.09.2024
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A. No. 1106 of 2009
and M.P.No. 1 of 2009
1.Arjunan (Died)
2.Arputhan
3.Anusuya
4.Ambujam
(Appellants 2 to 4 brought on record
as LRs of the deceased sole appellant
Viz. Arjunan vide Court order dated
13.07.2021 made in M.P.No.1/2014
in S.A.No.1106/2009) ... Appellants
Vs.
1.Dhanapal
2.Kothandapani
3.Krishnan
4.Durai @ Arumugam ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree in A.S.No.64 of 2008 dated
30.06.2009 on the file of the Principal Subordinate Court, Tindivanam
confirming the judgment and decree in O.S.No. 103 of 2000 dated
26.08.2008 on the file of the Principal District Munsif-cum-Judicial
Magistrate Court, Vanur and thereby allow the appeal.
For Appellants : Mr.N.Suresh
For Respondents : No appearance
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JUDGMENT
This second appeal has been filed to set aside the judgment and
decree dated 30.06.2009 in A.S.No.64 of 2008 on the file of the Principal
Subordinate Court, Tindivanam confirming the judgment and decree dated
26.08.2008 in O.S.No. 103 of 2000 on the file of the Principal District
Munsif-cum-Judicial Magistrate Court, Vanur.
2. The 1st appellant viz., Arjunan who was the sole plaintiff, died
pending this appeal and the appellants 2 to 4 were brought on record as his
legal heirs.
3. For the sake of convenience, the parties are referred to as per their
ranking in this appeal.
4. The case of the appellants is that one Venkatachala Kounder had 2
sons viz., Ariputhri Kounder and Sabapathy Kounder. Ariputhri Kounder
had 3 sons viz., Venkatachalam, Subburayan and Natesan. Venkatachalam
Kounder had only one son viz., Varadharaj Kounder and he had one son
viz., Arjunan, who is the 1st appellant. Thangaratinam Kounder had no
issues. The said Sabapathy Kounder had 3 sons viz., Palani, Arumugam
and Thangavel. Arumuga Kounder had one son viz., Duraisamy Kounder
and he had 4 sons, who are the respondents in this case.
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(ii).The 1st appellant's paternal grandfather Natesa Kounder purchased
4 cents from Narayansasamy Kounder S/o Venkatachala Kounder on
30.04.1934 and he got 1 cent from sub division of property which belongs to
their family. As such, he had 5 cents and he had been in enjoyment of the
property. Natesa Kounder had another son Thangarathinam who died
without any issue. Hence, 5 cents of land devolved on the 1 st appellant's
father. While so, the Government acquired 2 cents of land, out of 5 cents for
laying road. Thereafter, the 1st appellant's father made a settlement of 3
cents of the land in favour of the 1st appellant on 23.02.2000 and he was in
possession of the property. The respondents attempted to evict the 1 st
appellant from the suit property. Hence, the 1 st appellant filed a suit in
O.S.No.103 of 2000 on the file of the District Munsif-cum-Judicial
Magistrate Court, Vanur seeking declaration of title and permanent
injunction.
(iii). In the said suit, the respondents filed their written statement
stating that the total extent of the suit properties is 14 cents and 10 cents and
the same were divided between two brothers, but the 1 st appellant had stated
only 6 cents, which is false. Out of the 10 cents, sons of Sabapathy
Kounder got 7 cents and sons of Ariputhri Kounder got 3 cents by way of
partition and Sabapathy Kounder's sons viz., Palani, Thangavel and
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Arumugam got 2 1/3 cents respectively. The said Palani Kounder sold out
his portion i.e., 2 1/3 to Sabapathy Kounder. The sons of Ariputhri Kounder
viz., Subburayan and Natesan got 1 ½ cents by partition. Venkatachala
Kounder got 4 cents out of 14 cents on the upper side. Out of 10 cents,
Sabapathy Kounder got 7 cents and Subburayan and Natesan got 3 cents.
Further, Subburayan and Natesan got 1 ½ cents south wall and 1 ½ cents
north wall. The respondents were enjoying the lands of Subburayan. While
so, Narayanasamy Kounder S/o Venkatachala Kounder sold out 4 cents to
Mottaya Kounder and his brother Vekatachalam and they have been in
enjoyment of the property. The father of the 1st appellant had executed a
false settlement in favour of the 1st appellant. Therefore, the 1st appellant
had no right over the property and the settlement deed is not valid. Thus, the
respondents prayed for dismissal of the suit.
5. At the time of trial, the 1 st appellant examined three witnesses
and marked ten documents. The respondents examined three witnesses and
marked six documents. On hearing both sides and on the basis of the oral
and documentary evidence, the Trial Court held that the 1 st appellant did not
produce any patta and the sale deed produced by the respondents were
legally valid and dismissed the suit.
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6. Aggrieved over that, the 1st appellant preferred an appeal in
A.S.No.64 of 2008 before the Principal Subordinate Court, Tindivanam,
wherein, the lower appellate Judge analysed the facts and evidence and
concluded that the 1st appellant has claimed that a total extent of 0.5 cents
in total survey number, which belongs to his father, out of which, an extent
of 2 cents has been acquired by the Government for laying road, but no
evidence has been filed by the 1 st appellant to that effect. It was further held
that no evidence has been produced to show how much compensation was
awarded to the 1st appellant's father for the said land and no documents were
produced by the 1st appellant in respect of the house tax. The lower
Appellate Court went on to hold that the 1st appellant has not proved his
right and claim over the property through Exs.A1 to A4. Accordingly, the
appeal was dismissed by confirming the trial Court's findings. Challenging
the concurrent findings of the Courts below, the 1st appellant filed this
Second Appeal and the same was admitted on 14.10.2009 on the following
substantial questions of law :-
“1.Whether the Court below is right in dismissing
the claim of the plaintiff without taking into consideration
the documents of title under Exs.A1 to A5 filed on the side
of the plaintiff?
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2.Whether the Court below is right in dismissing the
claim of the plaintiff without taking into consideration the
additional evidence filed in the Appellate Court in
I.A.No.55 of 2009?
3. Whether the Court below is right in dismissing
the claim of the plaintiff by ignoring the categorical
admission made by the defendants in respect of the title of
the plaintiff's grandfather Natesa Gounder in the suit
property?”
7. Both the Courts below dismissed the suit for declaration of title and
permanent injunction in respect of 3 cents as described in the suit schedule
property. After leaving two cents, which was acquired by the State for
laying of ECR, the people built thatched houses in the remaining 3 cents.
8. According to the learned counsel for the appellants, the Courts
below failed to appreciate the fact that the sale deed dated 30.04.1934
belongs to the appellant's grand father, by which, he purchased 5 cents.
However, considering the title and possession, patta was also given in
respect of 5 cents in the name of the 1st appellant's father-Varadharaj
Kounder but the 1st appellant was not able to produce patta before the Court
due to lack of communication. So he prayed to remand the matter to the
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Trial Court enabling the appellants 2 to 4 to prove their claim in respect of
the suit property by producing patta and other relevant documents.
9. On perusal of the judgments rendered by the Courts below, it is
seen that the Trial Court dismissed the 1st appellant's claim since he did not
produce the relevant documents for 2 cents, which extent was acquired by
the State for laying the ECR and no documents were produced to establish
the title and also for the sale consideration.
10. Admittedly, the 1st appellant failed to produce the same before the
Trial Court. Subsequently, though he wanted to produce those documents
by filing I.A.No.55 of 2009, the same was not considered by the learned
Appellate Judge. Furthermore, there is no representation for the respondents
in respect of the subject property before this Court to substantiate their
claim.
11. Considering the stand now taken by the learned counsel for the
appellants that appellants 2 to 4 are in possession of patta and copy of all
the relevant documents to substantiate their case, the matter is remanded to
the Trial court for production of additional documents by appellants 2 to 4.
12. After receipt of the documents to be filed by appellants 2 to 4, the
Trial Court is directed to issue notice to the respondents afresh and give
opportunity to the respondents to produce all the relevant documents, if any
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on their side and thereafter, decide the case within a period of four (4)
months.
13. Accordingly, this Second Appeal is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
04.09.2024
msv
To
1. The Principal Subordinate Judge,
Tindivanam
2. The Principal District Munsif-
cum-Judicial Magistrate, Vanur
T.V.THAMILSELVI, J.
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msv
04.09.2024
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