Madras High Court
Thangavel vs Nagaraj on 27 September, 2024
S.A(MD)No.145 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 12.07.2024
Pronounced on : 27.09.2024
CORAM
THE HONOURABLE MR.JUSTICE P.VADAMALAI
S.A(MD)No.145 of 2018
and
C.M.P(MD)No.3811 of 2018
Ayyammal (Died)
1.Thangavel
2.Sakthivel ... Appellants/Respondents/Defendants
Vs.
1.Nagaraj
2.Nagarathinam ... Respondents/Appellants/Plaintiffs
PRAYER :-
This Second Appeal is filed under Section 100 of the Civil Procedure
Code, to set aside the judgment and decree dated 02.08.2017 made in
A.S.No.42 of 2014 on the file of the Subordinate Judge, Dindigul, reversing
the judgment and decree dated 09.07.2012 made in O.S.No.04 of 2007 on
the file of the District Munsif, Nilakottai.
For Appellants : Mr.R.Suriyanarayanan
For Respondents : Mr.S.Lenin Prabhu
1/14
https://www.mhc.tn.gov.in/judis
S.A(MD)No.145 of 2018
JUDGMENT
This Second Appeal is preferred against the judgment and decree,
dated 02.08.2017 passed in A.S.No.42 of 2014 on the file of the Sub Court,
Dindigul, reversing the judgment and decree, dated 09.07.2012 passed in
O.S.No.4 of 2007 on the file of the District Munsif Court, Nilakottai.
2. The appellants are the defendants and the respondents are the
plaintiffs in O.S.No.4 of 2007 on the file of the District Munsif Court,
Nilakottai. The respondents/plaintiffs have filed the suit for declaration and
injunction in respect of the suit properties.
3. For the sake of convenience, the parties are referred as plaintiffs and
defendants as arrayed in O.S.No.4 of 2007 on the file of the District Munsif
Court, Nilakottai.
4. Case of the plaintiffs:
The suit properties originally belonged to great grandfather of the
plaintiffs 1 and 2 namely Veeramadachi. After his death, his elder legal heir
Andi obtained his share. Kist receipts stood in the name of Andi. After
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demise of Andi, his two sons Periasamy and Sangili derived the suit property
and enjoyed it as their common property. Thereafter, the plaintiffs are in
joint enjoyment and are jointly doing agriculture in the suit property. The
1st defendant is the plaintiffs’ paternal aunt and the defendants 2 and 3 are
her sons. In the year 1969, the 1st defendant purchased 39 cents in S.No.
268/5 situated on the eastern side of the suit property from the plaintiffs'
respective father and grandfather Andi and has been enjoying the same by
doing agriculture. A few months back, the defendants asked the plaintiffs to
purchase the suit property, but the plaintiffs refused the same. Hence, the
defendants started disturbance over the possession and enjoyment of the
plaintiffs over the suit property. Hence, the plaintiffs have filed the present
suit.
5. Case of the Defendants:
It is false to state that originally the suit properties belonged to
Veeramadachi and after his death his elder son Andi derived the property.
In fact, Veeramadachi had three sons namely Thavasi, Karuppan and Andi.
The 1st defendant purchased Andi’s share of the suit property from the said
Andi and his sons Periyasamy and Sangili by virtue of the registered sale
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deed, dated 10.06.1969. So also, the 1st defendant purchased the share of suit
property of another son Karuppanan and his son Ayyanan through a
registered sale deed, dated 26.01.1960. From the date of purchase, the 1st
defendant has been in possession and enjoyment without any interference.
The survey number of the suit property and its four boundaries are wrongly
stated. The plaintiffs have to prove their title over the suit property. There is
no cause of action for the suit. Hence, the suit is liable to be dismissed.
6. Upon pleadings, the trial Court framed the following issues:-
''(i) Whether the suit properties
belonged to the plaintiffs?
(ii) Whether the plaintiffs are entitled to
declaration and injunction as prayed for?
(iii) Whether the 1st defendant has been
enjoying the suit property from the date of
purchase i.e., from 26.01.1960?
(iv) To what relief, the plaintiff is entitled
for?''
7. During trial, on the plaintiffs' side P.W.1 to P.W.3 were examined
and Ex.A.1 to Ex.A.3 were marked. Ex.X.1 to Ex.X.4 were also marked.
On the defendants' side, D.W.1 and D.W.2 were examined and Ex.B.1 to
Ex.B.7 were marked.
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8. After hearing both and considering the evidences of both sides,
the learned trial Judge/District Munsif, Nilakottai concluded that the
plaintiffs have not proved their case and dismissed the suit by passing a
judgment and decree, dated 09.07.2012.
9. Aggrieved by the judgment and decree in O.S.No.4 of 2007 on the
file of District Munsif Court, Nilakottai, the plaintiffs have preferred the
Civil Appeal in A.S.No.42 of 2014 on the file of the Additional Sub Court,
Dindigul. The first Appellate Court after hearing both passed judgment and
decree dated 02.08.2017, allowing the appeal in A.S.No.42 of 2014 and
reversed the judgment and decree passed in O.S.No.4 of 2007 and decreed
the suit.
10. Challenging the judgment and decree of the First Appellate
Court, the defendants preferred this Second Appeal and the same has been
admitted for file on 26.04.2018 on the following substantial question of law:-
(a) Whether the first appellate court
misread the prayer in the plaint and held that
the suit is one for bare injunction?
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(b) Is it correct in holding that the
plaintiffs are in possession and enjoyment of the
suit properties on the date of suit and thereafter,
when the revenue records admittedly do not
stand in their names?
(c) Whether the revenue records can be
accepted as conferring title on the plaintiffs
over the suit property?
11. The learned counsel for the appellants/defendants submitted that
the suit properties consist of two items, 1st item is 27 cents in S.No.267/7
and 2nd item is 37 cents in S.No.268/7. The suit properties originally
belonged to one Veeramadachi, who had three sons 1) Andi, 2) Thavasi and
3) Karuppanan. The plaintiffs are grandsons of the above said Andi.
The plaintiffs claim that the suit property was derived by Andi on oral
partition and from Andi, his sons Periasamy and Sangili obtained the suit
property and now they are enjoying the same. It is absolutely wrong. The
aforesaid Andi sold his share to the 1st defendant and also Karuppanan sold
his share to the 1st defendant. So, there is a cloud over the title in respect of
suit properties. When there is cloud over title, declaration and injunction
cannot be granted. But the first Appellate Court decreed the suit by
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misreading the prayer as the suit is only for an injunction. Even for
argument's sake, the injunction cannot be granted against co-owner. The
documents filed by the plaintiffs i.e., Ex.A.1 to Ex.A.3, only showing the
name Veeramadachi, the plaintiffs have not filed any piece of document to
establish their title over the suit property. All the revenue records stood in
the name of Andi and the defendants also traced the title through Andi. The
defendants are not strangers, they are also owners of the suit property by
virtue of registered sale deeds marked as Ex.B.1 and Ex.B.2. The plaintiffs
marked witness side documents which are all after the suit, they cannot be
given any weight. Further, the revenue records would not convey any title to
any person. And also additional document Ex.A.4 filed before the first
Appellate Court is also after the suit. The trial Court has correctly dismissed
the suit as the plaintiffs have not proved their case, whereas the first
Appellate Court misconstrued the evidences and reversed the finding of the
trial Court. The first Appellate Court cannot give a finding on title in a suit
for injunction that too without any valid title deed and so, the first Appellate
Court has not considered the other documents and evidences. Therefore, the
plaintiffs are not entitled to the injunction and the Second Appeal may be
allowed. In support of his argument, the learned counsel for the plaintiff
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relied on the judgment of the Hon’ble Supreme Court reported in AIR 2008
Supreme Court 2033 (Anathula Sudhakar /v/ P. Buchi Reddy).
12. Per contra, the learned counsel for the respondents/plaintiffs
contended that the plaintiffs are grandsons of Andi. Their fathers Sangili
and Periasamy are sons of Andi. Andi has two brothers Karuppanan and
Thavasi and they are sons of Veeramadachi. Veermadachi had owned the suit
property. Now the plaintiffs are in possession and enjoyment of the suit
property. The relationship of the defendants was accepted. The 1 st defendant
purchased 39 cents in S.No.268/5 from Andi, Sangili and Periyasamy
through Ex.B.1. The property purchased under Ex.B.2 has not mentioned
any survey number. The property of Ex.B.3 is not related to the suit
property. But, the suit survey numbers S.Nos.267/7 and 268/7 are entirely
different from the survey numbers of the defendants. The plaintiffs have
filed Ex.A.4 and Ex.A5 before the first Appellate Court to establish their
title. The first Appellate Court has correctly appreciated the evidences and
correctly decreed the suit. Since the trial Court had incorrectly dismissed the
suit, the first Appellate Court corrected the finding of the trial Court.
Therefore, the Second Appeal may be dismissed. In support of his argument,
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the learned counsel for the respondents has relied on the same citation relied
on by the defendants.
13. Heard the arguments of both and perused the material records of
the case. It is an admitted fact that the suit property belonged to
Veeramadachi and Veeramadachi had three sons Andi, Thavasi and
Karuppanan. It is the case of the plaintiffs that after the death of
Veeramadachi, the suit property was derived by their grandfather Andi as
being the eldest legal heir of Veeramadachi. At this juncture, on perusal of
evidence of P.W.1 who has categorically admitted as follows:
“vd; ghl;ldhh; tPuklr;rpf;F K:d;W thhpRfs;.
vd; ghl;ldhh; tPuklr;rpf;F vd;Dila jhj;jh
Mz;o kw;Wk; ,d;bdhU thhpR bgah; fUg;gzd;
vd;W nfs;tpg;gl;nld;. ,d;bdhU thhpR bgah;
bjhpahJ…. fUg;gzd; vd;gth;
tPuklr;rpapd; ,uz;lhtJ thhpR. vd;Dila
jhj;jh Mz;o vd;gth; K:d;wthJ thhpR…. vd;
ghl;ldhh; tPuklr;rpf;F tHf;F brhj;J jtph;j;J
ntW brhj;Jf;fs; vJt[k; me;j ,lj;jpy; ,y;iy.
… vd; ghl;ldhh; tPuklr;rpapd; brhj;jpy; vdJ
jhj;jhtpw;F fpilj;j brhj;J 3y; xU gq;F…....vd;
jhj;jh Mz;of;F fpilj;j brhj;jpd; tp];jPuzk;
gw;wp bjhpahJ. Mdhy; rh;nt vz;fs; bjhpa[k; rh;nt
vz;fs; 267/7 kw;Wk; 268/7y; brhj;Jf;fs;
cs;sJ ........nkw;Twpa ,U rh;nt vz;fspYk; vdJ
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jhj;jh Mz;of;F fpilj;jJ 3y; xU gq;Fjhd; ..”
From the above evidence, it is very clear that the suit properties originally
belonged to their great grandfather Veeramadachi and their grandfather
derived only 1/3 share in the suit properties. Therefore, there is no hesitation
in holding that the plaintiffs have not established that the suit properties in
entirety were derived by their grandfather Andi and after his death his sons
Periyasamy and Sangili and thereafter the plaintiffs derived the title.
14. On perusal of judgments of the Court below the trial Court has
correctly held that the plaintiffs have not produced any valid document to
prove their title over the suit property as the documents Ex.A.1 to Ex.A.3
stood in the name of Andi. The plaintiffs have filed witness side documents
only after the suit and also filed documents before the first Appellate Court
that is also after the suit. The documents after the suit cannot be taken into
consideration regarding title over the suit property.
15. The 1st defendant filed Ex.B.1 to Ex.B.3 regarding the purchase of
properties from branches of Andi. It is not disputed by the plaintiffs. The
plaintiffs state that they are some other property. At the same time, P.W.1
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clearly admitted that their great grandfather has no other property except the
suit survey number. On perusal of suit properties mentioned in the suit, there
are two items mentioned. One property is 27 cents in S.No.267/7 and
another property is 37 cents in S.No.268/7, but for two properties only four
boundaries for the 2nd item alone are mentioned and there is no mentioning of
four boundaries for the 1st item. Even perusal of four boundaries of the
2nd item, there is no mention of boundary regarding 1 st item. At the same
time, the eastern boundary is shown as “b$aghz;o> ma;ak;khs; g[Q;ir
epyk;;:”. It is the definite case of the 1st defendant that she purchased two
shares of the suit property from two branches of Veermadachi, i.e., Andi and
Karuppanan. So there is a clear cloud of title of the plaintiffs over the suit
property. When that being the circumstance, the first Appellate Court has
committed an error in giving a finding based on revenue records and also
misread the prayer that the suit is filed for a bare injunction. Even if it is so,
an injunction cannot be granted against the co-owner, which is a settled
position of law.
16. When there are no revenue records to show the plaintiffs' name, the
first Appellate Court’s finding that the plaintiffs are in possession of the suit
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property is a complete miscarriage of justice. Without title, no one seeks an
injunction against the co-owner of the property. It is a settled proposition of
law that revenue records will not confer any title to any person. Even the
revenue records Exs.A.1 to A.3 filed by the plaintiffs, do not find place, the
name of the plaintiffs, they bear only the name of Andi, through whom the
defendants claimed the title under Ex.B.1 to Ex.B.3. It is well settled
proposition of law, that a litigant should stand proved on his own case and
he/she does not find fault with the opponent’s case. The citation relied on by
both sides, will be squarely applicable to the case of the defendants only.
Hence, the judgment rendered by the first Appellate Court is held to be
perverse.
17. In view of the above discussion, this Court finds that the judgment
and decree of the first Appellate Court requires the interference of this Court.
All the substantial questions of law framed by this Court are answered in
favour of the appellants/defendants. Thus this Second Appeal succeeds.
18. In the result, this Second Appeal is allowed. The judgment and
decree, dated 02.08.2017 passed in A.S.No.42 of 2014 on the file of the Sub
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Court, Dindigul, reversing the judgment and decree, dated 09.07.2012 passed
in O.S.No.4 of 2007 on the file of the District Munsif Court, Nilakottai is set
aside. The judgment and decree passed by the District Munsif, Nilakottai in
O.S.No.4 of 2007 is restored and the suit in O.S.No.4 of 2007 is dismissed.
No costs. Consequently, connected Miscellaneous Petition is closed.
27.09.2024
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
VSD
To
1.The Subordinate Judge,
Dindigul.
2. The District Munsif,
Nilakottai.
3.The Record Keeper,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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P.VADAMALAI, J.
VSD
Pre-Delivery Judgment made in
and
27.09.2024
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