Madras High Court
Rajamma vs Murugesan on 2 January, 2025
2025:MHC:4284
S.A.No.487 of 20 21
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 24 / 09 / 2024
JUDGMENT PRONOUNCED ON : 02 / 01 / 2025
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.487 OF 2021
AND
CMP NO.9368 OF 2021
Rajamma ... Appellant / Appellant /
Defendant
Vs.
Murugesan ... Respondent / Respondent /
Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
March 26, 2019 made in A.S.No.26 of 2016 by the learned Subordinate
Judge, Krishnagiri confirming the Judgment and Decree dated March 30,
2016 made in O.S.No.151 of 2013 by the learned District Munsif,
Krishnagiri.
For Appellant : Mr.V.Nicholas
For Respondent : Ms.S.Uma Maheswari
for M/s.C.Jagadish
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S.A.No.487 of 20 21
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated March 26, 2019 passed in A.S.No.26 of 2016 by the
'Principal Subordinate Court, Krishnagiri' ['First Appellate Court' for
brevity], whereby the Judgment and Decree dated March 30, 2016 passed
in O.S.No. 151 of 2013 by the 'District Munsif Court, Krishnagiri' ['Trial
Court' for brevity] was partly modified.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF'S CASE
3. In the plaint it is averred that the defendant is the elder
sister of the plaintiff. The Suit Property is the plaintiff’s absolute property
which he purchased on February 11, 1987 for Rs.10,000/- from one Jollan
of Balinayanapalli Taraf. Possession was handed over on the same day
and the plaintiff has been in absolute possession and enjoyment since
then. Patta No.292 was issued in his favour. Based on documents, house
loan was provided by the Housing Society, Krishnagiri to the plaintiff and
the same was duly discharged by him. On March 15, 2013, the defendant,
who has no right or interest, attempted to trespass into the Suit Property
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and disturbed the plaintiff’s peaceful possession and enjoyment. Hence
the Suit for declaration, permanent injunction and other reliefs.
DEFENDANT'S CASE
4. Sum and substance of the written statement filed by the
defendant is that all the plaint averments, except the relationship between
the parties, are wrong. The Suit Property was originally a Natham
Poromboke occupied by one Jollan who later sold it to the defendant. The
defendant removed the thatched shed therein and constructed a RCC
house therein. She has been in continuous possession and enjoyment of
the Suit Property. As the plaintiff, being her brother, demanded a separate
room, the defendant obtained a loan in his name and the same was
discharged by the defendant through the plaintiff. Further, while the
defendant had already obtained service connection in S.C.No.23100, the
plaintiff obtained another in his name. The Suit description of property is
wrong and the Suit valuation is wrong. Accordingly, the defendant sought
for dismissal of the Suit.
TRIAL COURT
5. At trial, plaintiff examined himself as P.W.1, one
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Chinnaraj was examined as P.W.2, and Ex-A.1 to Ex-A.7 were marked on
the side of the plaintiff. On the side of the defendants, the defendant –
Rajamma was examined as D.W.1, two other witnesses were examined as
D.W.2 and D.W.3 and Ex-B.1 and Ex-B.2 were marked.
5.1. Upon hearing both sides and considering the evidence
available on record, the Trial Court concluded that two houses are there in
the Suit Property, in which, the plaintiff is residing in one house by paying
house tax and also obtained Electricity Service Connection in his name
for the same. Considering the relationship between the plaintiff and the
defendant viz., brother and sister as well as the admission made by the
plaintiff during the trial proceedings that he has no objection to give one
house to the defendant, the Trial Court decreed the Suit except qua the
thatched house in the Suit Property. The Trial Court concluded that the
thatched small house in the Suit Property belongs to the defendant and the
rest belongs to the plaintiff. Accordingly, declaration of title and
injunction was granted in favour of the plaintiff except qua the thatched
house.
FIRST APPELLATE COURT
6. Feeling aggrieved, the defendant preferred an appeal
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before the First Appellate Court, which after hearing both sides and
perusing the documents available on record, concluded that the plaintiff
alone is in possession and enjoyment of the Suit Property. The Trial Court
erred in arriving at a conclusion that small thatched house belong to the
defendant. Accordingly, the First Appellate Court dismissed the appeal
and set aside the Trial Court’s Judgment and Decree to the extent that the
thatched house belong to the defendant. In short, the First Appellate Court
decreed the Suit as prayed for.
ARGUMENTS
7. M/s. V.Nicholas, learned Counsel for the appellant/
defendant would argue that originally the Suit Property is a Natham
poramboke. The plaintiff and the defendant are brother and sister and are
residing in the Suit Property. Thereafter, the plaintiff and defendant in
their joint efforts and exertions constructed a mould house and another
small thatched house in the Suit Property. Thereafter, the defendant is
residing in the thatched house portion of the Suit Property. The Trial
Court rightly granted declaration with regard to only the portion in which
the plaintiff is residing. The First Appellate Court, without appreciating
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the fact that the plaintiff and defendant are brother and sister, and both are
residing in the Suit Property, dismissed the appeal and modified the Trial
Court's Judgment and Decree by granting Decree as prayed for in respect
of entire Suit Property including the portion in which the defendant is
residing. The same is erroneous. Accordingly, she would pray to allow the
Second Appeal.
8. Per contra, Ms.S.Uma Maheswari for M/s.C.Jagdish,
learned Counsel for the respondent / plaintiff would argue that Ex-A.2 to
Ex-A.7 would establish the fact that the plaintiff alone is in possession
and enjoyment of the Suit Property. Merely because Ex-B.1 – House Tax
Receipts and Ex-B.2 – Electricity Receipts stand in the name of the
defendant, that alone would not confer any title in favour of the
defendant. The defendant is a permissive occupant and cannot deny the
title of the plaintiff. The First Appellate Court rightly decreed the Suit in
respect of entire Suit Property as prayed for by dismissing the appeal.
There is no warrant to interfere with the said finding. Accordingly, she
prayed to dismiss the Second Appeal.
SECOND APPEAL
9. Feeling aggrieved, the defendant has preferred this Second
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Appeal, which was admitted on January 23, 2024 on the following
Substantial Question of Law:
"Whether the lower appellate Court is correct in
reversing the judgment and decree of the trial Court
allotting distinct shares to the parties on the basis of the
consent of both the parties, especially when the same has
not been challenged by the plaintiff ?"
DISCUSSION:
10. This Court has heard on either side and perused the
materials available on record in light of the Substantial Question of Law.
11. Admittedly, the plaintiff and the defendant are brother and
sister. Originally, the Suit Property is a Natham poramboke. Considering
the possession and enjoyment, Ex-A.2 - Rough Patta / Thoraya Patta was
granted to the plaintiff. Ex-A.2 to Ex-A.7 documents proved that the
plaintiff is in possession and enjoyment of the Suit Property. Ex-B.1 is a
House Tax Receipt standing in the name of the defendant for the year
2005-2006. Ex-B.2 series contains 16 electricity consumption charges
receipts for Service Connection No.190-053-140 which stands in the
name of the defendant. Ex-B.2 series shows that the plaintiff is residing in
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the Suit Property since 2008. The witnesses examined by the defendant
have categorically stated that the defendant is also in possession and
enjoyment of a portion of the Suit Property by putting up thatched house
for the past 25 years.
12. Though Ex-A.2 - Rough Patta / Thoraya Patta was
granted in the name of the plaintiff, and the plaintiff had put up
construction in a portion of the Suit Property, from Ex-B.1 and Ex-B.2
coupled with the oral evidence on the defendant’s side, it is discernible
that the defendant is also residing in a portion of the Suit Property by
putting up small thatched shed. Since the plaintiff and the defendant are
siblings, the Revenue Authorities must have issued Ex-A.2 - Thoraya
Patta solely in the name of the plaintiff, being the male member. It is quite
natural in a patriarchal society for the revenue records to stand in the
name of the male member. Merely because Ex-A.2 - Rough Patta stands in
the name of the plaintiff, the plaintiff cannot claim exclusive title
excluding his own sister who is residing in the Suit Property for more
than 15 years by putting up a small thatched house. The Trial Court
rightly appreciated and scrutinized the documents and evidence, and
granted limited relief of declaration of title in respect of the portion of
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Suit Property in which the plaintiff put up a mould house. The First
Appellate Court miserably failed to consider the relationship between the
parties, the defendant’s documents i.e., Ex-B.1 - House Tax Receipt and
Ex-B.2 – Receipts for Electricity Consumption Charges paid by the
defendant and also the oral evidence adduced on the side of the defendant
in the right perspective, and erred in granting the reliefs sought for in
respect of entire Suit Property in favour of the respondent before it /
plaintiff, who did not prefer any appeal over the Trial Court’s Judgment
and Decree. The process of adjudication involves not only the application
of laws but also the delivery of justice. Hence, in the interest of justice,
this Court is of the considered view that the Judgment and Decree of the
First Appellate Court is liable to be interfered with. Substantial Question
of Law is answered accordingly.
CONCLUSION:
13. In the result, the Second Appeal is allowed, the Judgment
and Decree of the First Appellate Court is set aside and the Judgment and
Decree of the Trial Court is confirmed. Considering the relationship
between the parties, there shall be no order as to costs. Consequently,
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connected Civil Miscellaneous Petition is closed
02 / 01 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
To
1.The Subordinate Judge
Krishnagiri.
2.The District Munsif
Krishnagiri.
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R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.487 OF 2021
02 / 01 / 2025
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