Madras High Court
Dharmendran vs Ashok Verghese on 7 January, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.325 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2025
CORAM
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
S.A.No.325 of 2024
and
CMP.No.9765 of 2024
1.Dharmendran
2.Duraivelu
3.Dilliraj ... Appellants
Vs
1.Ashok Verghese
2.Anand Jacob Verghese
3.Sonny George
4.Lalitha
5.Kumar
6.Inbaraja
7.Yesudass
8.Stephen
9.Renu Abraham ... Respondents
PRAYER: Second Appeal filed Under Section 100 of the Civil Procedure
Code, against the Judgment and decree dated 18.12.2023 made in
A.S.No.11 of 2022 on the file of Subordinate Judge, Alandur in reversing
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S.A. No.325 of 2024
the judgement and decree dated 22.10.2021 in O.S.No.658 of 2006 on the
file of District Munsif Court, Alandur.
For Appellants : Mr.V.Raghavachari, Senior Counsel
for M/s.R.Gouri
For R1 & R2 : Mr.Nithyesh Natraj
for Vaibhav R Venkatesh Cavetor
For R9 : Mr.T.S.Vijaya Raghavan
JUDGMENT
The appellant has filed this Second Appeal against the judgment and
decree dated 18.12.2023, made in A.S.No.11 of 2022 on the file of the
Subordinate Judge, Alandur, which reversed the judgment and decree dated
22.10.2021 in O.S.No.658 of 2006 on the file of the District Munsif Court,
Alandur.
2. Heard Mr. V. Raghavachari, learned Senior Counsel appearing for
M/s. R. Gouri, learned counsel for the appellants, and Mr. Nithyesh Natraj,
learned counsel appearing for Mr. Vaibhav R. Venkatesh Cavetor, and
perused the material available on record.
3. For the sake of convenience, the parties herein are referred to as
they were ranked in the suit.
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4. The appellants are the plaintiffs, challenging the reversal of the
findings rendered in A.S.No.11 of 2022 on the file of the Subordinate Judge,
Alandur. The appellants/plaintiffs filed a suit, O.S.No.658 of 2006, seeking
a declaration and other consequential reliefs. The trial court ruled in their
favor. However, the defendants preferred an appeal in A.S.No.11 of 2022,
which was allowed, setting aside the findings of the learned trial judge.
Hence, the present appeal has been filed by the appellants/plaintiffs.
5. The Brief facts of the case as follows:
The suit property, described as A-Schedule, is located in old Survey
No.259/2 (new Survey No.259/16) and comprises a house and ground
bearing Door No.4/467A in Swaminathan Nagar, 3rd Main Road,
Kottivakkam Village. The property belongs to the plaintiffs through a
settlement deed executed by their father, Dhanasekaran, dated 03.08.2006.
Before the plaintiffs, their father, Dhanasekaran, was in possession and
enjoyment of the property for more than 30 years, having inherited it from
his father, Thangavelu, as ancestral property.
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6. To access the A-Schedule property, the plaintiffs used a public
lane, named Swaminathan Nagar, 3rd Cross Street, shown as the green-
colored portion in the plan, referred to as the B-Schedule property. The first
defendant, allegedly conspiring with other defendants, interfered with this
access, prompting the plaintiffs to file the suit.
7. The suit was initially filed against six defendants. After the 1st
defendant filed a written statement, the 7th and 8th defendants were
impleaded. The 1st defendant contested the suit, disputing the plaintiffs'
rights and title over both A and B-Schedule properties. She alleged that the
plaintiffs trespassed into her property, comprised in Survey Nos.259/2 and
259/3, broke the compound wall, and removed the gate on the eastern side
of her property.
8. The 1st defendant further claimed that the entire property belongs
to her daughter, Renu Abraham (D-9), who purchased it through a
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registered sale deed dated 24.01.1990. She also raised the issue of
misjoinder of necessary parties. Subsequently, the plaintiffs impleaded Renu
Abraham as the 9th defendant.
9. The 7th and 8th defendants also contested the case, asserting that
the plaintiffs have no right or title over the suit property. They alleged that
the plaintiffs fabricated the settlement deed to claim the property
fraudulently. They stated that an extent of 66 cents, comprised in Survey
No.259, part of Kottivakkam Village, was purchased by them through a
registered sale deed dated 31.10.2003 from their vendor, M/s. Silk Asia
Exports Pvt. Ltd. Since then, they have been in possession and enjoyment of
the property, which is enclosed by a compound wall.
10. The defendants further alleged that the plaintiffs, with ill
intentions, broke open the compound wall and unlawfully occupied a
portion of their land, shown as A-Schedule. They denied that the plaintiffs
used the B-Schedule property as a pathway to access the A-Schedule
property. The defendants claimed their vendor derived title as far back as
1952, and the plaintiffs’ claims were vexatious and without locus standi.
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Hence, the defendants prayed for the dismissal of the suit.
11. Before the trial court, both parties adduced oral and documentary
evidence. On the side of the plaintiffs, the second plaintiff was examined as
PW1, and Exs.P.1 to Ex.P.19 were marked. On the side of the defendants,
the seventh defendant was examined as DW1, and notice and patta were
marked as Ex.B1 and Ex.B2. A commissioner was also appointed, and his
report was marked as C.W.1 and C.W.2.
12. The learned trial judge framed four main issues concerning the
declaration with an alternative prayer in respect of the A-scheduled and B-
scheduled property and whether the plaintiffs were entitled to the relief of
permanent injunction. Upon considering the entire evidence on record, the
trial judge found that the plaintiffs' predecessor-in-title owned an extent of
33 cents. To this effect, there was a patta in the name of the plaintiffs'
grandmother, Rachel, in Patta No. 365, as evidenced by Ex.A17, the A-
Register extract. The boundary description found in Ex.A4 (sale deed)
showed that the northern boundary was the land of Chinna Kulandai, the
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great-grandfather of the plaintiffs. The trial court also relied on Ex.A1,
Ex.A7, Ex.A8, and the commissioner’s report, concluding that the plaintiffs
proved their right and title over the A-scheduled property and were enjoying
the B-scheduled property as a public lane to access the A-scheduled
property.
13. On the other hand, the defendants failed to establish any right or
title to the suit property, particularly in respect of Survey No. 259/2.
Accordingly, the suit was decreed as prayed for.
14. Challenging the trial court's findings, defendants 7 and 8 preferred
an appeal (A.S. No. 11 of 2022), which was contested by the
plaintiffs/respondents. The learned appellate judge independently analyzed
the entire facts and evidence of the case and framed three issues regarding
the relief of declaration and permanent injunction in respect of both A- and
B-scheduled properties.
15. The learned appellate judge held that the plaintiffs failed to
establish their title based on Ex.A17. The name “Roosav” mentioned in the
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document was not proved to refer to their grandmother Rachel, nor did the
plaintiffs produce any document showing that Rachel/Roosav was the wife
of Thangavelu, the plaintiffs' grandfather. The appellate court also noted
that Ex.A17, when read alongside other evidence, did not substantiate the
plaintiffs' claims. Additionally, Rachel's death certificate (Ex.A12) did not
mention her husband's name, and no documents were produced in the name
of the plaintiffs' father or grandfather.
16. The plaintiffs claimed 33 cents under the settlement deed (Ex.A1)
but approached the court for the relinquishment of only 9 cents without
proper explanation. The appellate court found that the plaintiffs failed to
prove their title or cause of action.
17. On the other hand, the defendants successfully established their
vendor's title from 1995 through sale deeds (Ex.A11) and proved the
vendor’s title dating back to 1952. The appellate court observed that the
plaintiffs, who sought a declaration, had the burden of proving their title.
However, the trial court erroneously appreciated the plaintiffs' evidence and
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granted relief. Accordingly, the appellate court allowed the appeal, setting
aside the trial court's findings. Challenging the appellate court’s decision,
the plaintiffs preferred this second appeal.
18. The learned counsel for the appellants raised the following prime
grounds:
i. The Lower Appellant Court ought to have seen that the plaintiff's
title coupled with the possession over the suit property was further
corroborated by Exhibits A2 Electricity bill, Exhibit 3 Property Tax receipt
Ex. A17 Adangal which is 60 years old document reflecting the name of the
plaintiff's grandmother Racheal to substantiate the nature of the property as
the plaintiff's ancestral property continuously in possession and enjoyment
of the plaintiffs.)
ii. The Lower Appellant Court ought to have seen that the suit 'A'
Schedule property being house comprised in S. No. 259/2 measuring an
extent of 33 cents originally owed by the plaintiff's grandmother Rachal
corroborated by Ex. A17 Adangal extract which is 60 years old document
which latter fell to the share of the plaintiff's father and was latter settled by
executing registered Settlement Deed Ex. A1 to plaintiffs jointly being his
sons.
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Iii. The Lower Appellate Court ought to have seen that Ex. 4 Sale
Deed Registered as Doc No.1949 of 1967 dated 22.5.1967 on the file of
SRO Saidapet being the parent document which was executed by the
plaintiff's adjacent owner Kesavan in respect of his property to in favour of
Samuvel there is no mention as to Survey No. 259/2. Per contra to
corroborate the case of the plaintiffs, in the schedule property in said
document it has been described as Chinnakulandai property in the
Northern side being the plaintiff's ancestor great grandfather.
iv. The Lower Appellate Court ought to have seen that while that
being so Samuvel through his Power Agent being the 1" defendant
fraudulently included S. No. 259/2 and executed two Sale deeds marked as
Exhibits A5 and A6 registered as Doc. No. 569 of 1995 dated 9.2.1995 on
the file of SRO Adyar and Doc. No. 566 of 1995 dated 9.2.1995 on the file
of SRO Adyar to in favour of Silk Asia Export Private Limited along with
the larger extent of land. The Planttiff's property measuring an extent of 33
cents in S. No. 259/2 has been fabricated and incorporated in the said two
sale deeds which document is void and non est in the eye of law to the
extent of the plaintiff's property. Therefore the sale deed executed through
power agent by one who does not have any title right, and interest over the
property does not confer any right, title and interest over the
v. The Lower Appellant Court ought to have seen that the
Defendants 7 and 8 claim their alleged right over the suit property by
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virtue of void ad initio conveyance document said to have purchased from
one Silk Asia Private Limited. The said document nothing but void as the
alleged vendor does not have title over the suit property and therefore any
alleged sale deed said to have been executed by vendor who does not have
any semblance of right, title over the property does not confer valid right,
title and interest over the property to the purchaser.
vi. The Lower Appellate Court ought to have seen that the and 7th
and 8th defendants are not the bonafide purchasers and have involved in
creating fabricated conveyance documents to ursurp the ancestral property
of the plaintiff being 33 cents while executing the sale deed in respect of
larger extent of land. The said factum is clearly established by their own
covenants in the sale deed that the plaintiffs' are in possession of the
property as described in the schedule of the property therein.
vii. The Lower Appellate Court ought to have seen that the
defendants 2 to 6 are the plantiff's father's sister's children who have been
set exparte and has not turned to contest the case on merits. The Lower
Appellant court ought to have drawn adverse inference since the defendants
2 to 6 were remained exparte.
Viii. The Lower Appellate Court ought to have scanned Advocate
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Commissioner report marked as Ex. C1 and C2 that the physical feature of
the property to elucidate the issue for the court to decide clearly endorsed
the plaintiffs pleading coupled with the factum of possession of the property
to an extent of 33 cents which formed part of the larger extent of land
which is the adjacent land.
ix. The Lower Appellate Court ought to have seen the "B" schedule
property is the common pathyway to reach the "A" schedule property ?
being the plaintiff's house as the same was admitted by the defendant
during cross examination that "B" schedule property is common pathway.
x. The Lower Appellate Court has erred to discarding the pleading of
the plaintiff that "B" schedule property is a common pathyway to reach his
house being "A" schedule property since the plaintiff has not taken
subpoena to examine the statutory authorities to that effect to show that it
has been recorded as pathway in revenue records and also in Exhibits A7,
A8, A9 and A10 which fact that it is used as common pathway has been
admitted by the defendant during the evidence.
xi. The Lower Appellate Court ought not to have discarded Ex. A17
on the finding that the name defers in the document while the same is only a
typhographical mistake (mentioned as Rochal instead of Rachael) being 60
years old document which fact need to be corroborated with other exhibits
being the electricity receipt, property tax to substantiate it is an ancestral
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property.”
19. Further, by producing additional typeset papers, the learned
counsel for the appellants submitted the earlier suit judgment and decree
passed in O.S. No. 288 of 1967. This suit was filed by one Baby Ammal,
who claimed to be born to Thangavelu and Chellammal, against Rachel,
Dhanasegar (mother and son), and another third party, Azhagappan, seeking
a declaration of right and title over the property in Survey No. 259/2, an
extent of 33 cents, with specified boundaries in Kottivakkam village.
20. The learned counsel submitted that the suit was filed by Baby
Ammal against Rachel and Dhanasegar, who were the grandmother and
father of the present plaintiffs. In that suit, Survey No. 259/2 (33 cents) was
claimed as the absolute property of Thangavelu. According to Baby Ammal,
she was the only legal heir born through her mother, Chellammal, and
asserted that Rachel was a concubine of Thangavelu. While it was admitted
that Dhanasegar was born to Rachel and Thangavelu, he was deemed an
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illegitimate son.
21. Both parties contested the suit, and during its pendency, Rachel
passed away. After considering evidence from both sides, the learned trial
judge concluded that Baby Ammal was entitled to a 3/4 share of the
property, with the remaining 1/4 share going to Dhanasegar as the
illegitimate son. Accordingly, Dhanasegar derived his right and title to the
property through the said decree. Though this document was not impleaded
in the current proceedings, the court has the authority to receive it as
additional evidence.
22. To support this contention, the learned counsel relied on the
authority cited in AIR 1987 Supreme Court 1242, "Ram Sarup Gupta
(dead) by L.Rs.Appellants v. Bishun Narain Inter College and others
respondents", which states:
"Civil P.C. (5 of 1908), O.6 R.1—Pleadings—Object and purpose
—Question about lack of pleadings—It is not desirable to place
undue emphasis on form; instead, the substance of pleadings should
be considered."
23. The learned counsel submitted that although the decree and
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judgment in O.S. No. 288 of 1967 were not produced before the courts
below, they can now be received as additional evidence since they are
public documents. Furthermore, the respondents/defendants claimed that
their vendor's vendor purchased the property from the legal heirs of the
plaintiffs in the suit.
24. The learned counsel for the appellants also pointed to Ex.A-17,
the land A-register extract for Survey No. 259/2, which showed 33 cents
registered in the name of Tha.Roosav/j/nuhrt; (denoting Rachel, the
plaintiffs' grandmother). This document, which has been in force for
approximately 40 years, was not challenged by any party. Even the
defendants' sale deed referenced a part of Survey No. 259/2 as one of the
boundaries. The plaintiffs' ancestors, including Chinnakulandai, further
established their right and title, which the trial court correctly appreciated.
However, the first appellate court failed to properly evaluate these valuable
documents. The appellants prayed for the findings of the first appellate court
to be reversed and set aside.
25. In response, the counsel for the contested respondents (1 and 2)
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argued that the first appellate court rightly appreciated the oral and
documentary evidence produced before the trial court. The court rightly
concluded that the plaintiffs failed to prove their right and title, as well as
their claim of succession through their predecessors. Specifically, Ex.A-17
and the death certificate (Ex.A-12) did not sufficiently establish that Rachel
(or Roosav) was the wife of Thangavelu. The findings of the court were
well-reasoned and did not require interference.
26. The respondents' counsel also argued that the defendants had
proved their right and title through sale deeds (Ex.A-7 to Ex.A-10) and
prayed for the appeal to be dismissed as it lacked substantial questions of
law. Furthermore, the plaintiffs failed to properly identify the suit property
with an accurate description, which the first appellate court correctly
recognized.
27. To support their arguments, the respondents' counsel relied on
the following authorities:
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(i). In 2024 (3) SCC 224, Mary Pushpam Vs. Telvi curusumary and
others, in which stated as follows:
“24. In order to test the above argument, we carefully
examined the judgment of the trial court as also the first
appellate court. What is discernible is that nowhere it is
recorded the actual boundary or the measurements of the
property in possession of the mother of the appellant
(defendant therein). The respondents-plaintiff therein had
based her case on the ground that they had purchased 8 cents
of open piece of land and the defendant therein had raised
construction over some adjoining land, and had trespassed
over part of her purchased land as such decree of possession
be granted.
25. We are unable to appreciate the said argument of the
respondents. Suit for possession has to describe the property in
question with accuracy and all details of measurement and
boundaries. This was completely lacking. A suit for possession
with respect to such a property would be liable to be dismissed
on the ground of its identifiability. Further, it may be noted
that if the construction by the defendant were not made over 8
cents of purchased land, then the plaintiff therein would not
have a claim to possession of the same. The argument thus has
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to be rejected not only on facts but also on legal grounds as
discussed above.”
(ii) In 2008 (17) Supreme Court Cases 491, Bachhaj Nahar Vs.
Nilima Mandal and another, stated as follows:
“18. A perusal of the plaint clearly shows that entire case of the
plaintiffs was that they were the owners of the suit property and that
the first defendant had encroached upon it. The plaintiffs had not
pleaded, even as an alternative case, that they were entitled to an
easementary right of passage over the schedule property. The facts to
be pleaded and proved for establishing title are different from the
facts that are to be pleaded and proved for making out an
easementary right. A suit for declaration of title and possession
relates to the existence and establishment of natural rights which
inhere in a person by virtue of his ownership of a property. On the
other hand, a suit for enforcement of an easementary right relates to
a right possessed by a dominant owner/occupier over a property not
his own, having the effect of restricting the natural rights of the
owner/occupier of such property.”
(iii) Judgment of the Hon'ble Supreme Court of India in Civil
Appeal No. 742 of 2001, Narayanan Rajendran and another Vs.
Lekshmy Sarojini & others:
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"64. Now, after 1976 Amendment, the scope of Section 100 has
been drastically curtailed and narrowed down. The High Courts
would have jurisdiction of interfering under Section 100 C.P.C. only
in a case where substantial questions of law are involved and those
questions have been clearly formulated in the memorandum of
appeal. At the time of admission of the second appeal, it is the
bounden duty and obligation of the High Court to formulate
substantial questions of law and then only the High Court is
permitted to proceed with the case to decide those questions of law.
The language used in the amended section specifically incorporates
the words as "substantial question of law" which is indicative of the
legislative intention. It must be clearly understood that the legislative
intention was very clear that legislature never wanted second appeal
to become "third trial on facts" or "one more dice in the gamble".
The effect of the amendment mainly, according to the amended
section, was:
(i) The High Court would be justified in admitting the second appeal
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only when a question of law is involved;
(ii) The substantial question of law to precisely / state such question;
(iii) A duty has been cast on the High Court to formulate substantial
question of law before / hearing the appeal;"
(iv). 2023 SCC Online Kerala 8970, Fathima Beevi and others Vs.
Abdul Rahman, in which reads as follows:
“17. Thus, the legal position emerges is that, when there is a sale
deed, if the executant wanted to annul the same, he had to seek
cancellation of the said deed or the relief to set aside the deed. If a
non -executant seeks annulment of a deed, he had to seek a
declaration that the deed is invalid, or non-est or, illegal or that the
deed is not binding upon him. In this matter, the plaintiff not sought
the relief to declare Ext.B1 as invalid, or non-est or, illegal or that
the deed is not binding upon him. In fact, the plaintiff could not
succeed without seeking such a relief and getting the said relief
allowed.”
28. Upon considering both submissions, the following questions of
law is framed:
A. Whether the findings rendered by the first appellate
judge involve a mis appreciation of evidence, leading to
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injustice, and whether they are perverse in nature and liable to
be set aside?
B. Whether the Lower Appellant Court have erred in not
confirming the Decree of the Trial Court when Ex A 4 to A 10
being the Registered Sale Deeds clearly incorporates the
physical possession of the property to an extent of 33 cents,
which fact clearly depicts the suit property to an extent of 33
cents is the ancestral property of the plaintiff in their
possession and the subsequent documents executed in respect
of adjacent property has wrongly fabricated to include the
portion of the plaintiff's property which is non est in the eye of
law to the extent of the plaintiff's ancestral property in
concerned?
C. Whether the Lower Appellant Court have erred in not
confirming the Decree of the Trial Court when the plaintiff's
title coupled with the possession over the suit property was
further corroborated by Exhibits A2 Electricity bill, Exhibit 3
Property Tax receipt Ex. A17 Adangal which is 30 years old
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document reflecting the name of the plaintiff's grandmother
Racheal to substantiate the nature of the property as the
plaintiff's ancestral property continuously in possession and
enjoyment of the plaintiffs?
D. Whether the Lower Appellant Court have erred in
discarding the pleading of the plaintiff that "B" schedule
property is a common path way to reach his house being "A"
schedule property since the plaintiff has not taken subpoena to
examine the statutory authorities to that effect to show that it
has been recorded as pathway in revenue records abd Exhibits
A7,A8, A9 and A10, which the fact that it is used as common
pathway has been admitted by the defendant during the
evidence ?
E. Whether the Lower Appellant Court have erred in
completely rejecting the case of the plaintiff that Ex. A17 being
the adangal extract reflecting the name of the plaintiff's
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grandmother cannot be seen into since it has not been pleaded
by the plaintiff in the plaint. It is submitted that the plaintiff
has specifically pleaded that the suit property is his ancestral
property wherein the plaintiff's grandmother Rachael was in
possession and enjoyment corroborated by Exhibit A17
adangal extract being 60 years old document which latter fell
to the share of the plaintiff's father and thereafter to his sons
being the plaintiffs ?”
29. According to the appellants/plaintiffs, they claim rights and title
over the suit A-schedule property through a settlement deed, Ex.A1. They
assert that their father, Dhanasegaran, derived his right and title over the
property through their grand-parents, namely Rachel and Thangavelu. In the
settlement deed, their father’s name is mentioned as Thangavelu. As per
settlement deed / Ex.A6, it is stated that their father, Thangavelu, owned 33
cents of land in Old Survey No. 259/2 in Kottivakkam Village. The
document / Ex.A6 also mentions that Thangavelu married Rachel, and
Dhanasegaran was born to them. After the demise of Thangavelu, his wife
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Rachel possessed and enjoyed 33 cents of land. Upon Rachel’s demise, the
properties came into the possession of Dhanasegaran, who, out of love and
affection, executed a settlement deed in favor of the plaintiffs, and his
children as legal heirs.
30. The suit schedule properties consist of an extent of 33 cents in
Old Survey No. 259/2 in Kottivakkam Village with defined boundaries.
However, Ex.A6 Settlement deed is disputed by the contesting defendants,
who argued that, neither the plaintiffs’ father, Dhanasegaran, nor his father,
Thangavelu, owned any land in Survey No. 259/2. The defendants claim
that they purchased the property from their vendor, M/s. Silk Asian Exports
Pvt. Ltd., through their Power Agent, the first defendant, and his daughter,
the ninth defendant. Additionally, the seventh and eighth defendants assert
that they purchased a portion of the suit A-schedule property from the same
vendor and disputed the plaintiffs’ claim of ownership over the property.
31. The plaintiffs approached the Court seeking relief for declaration
and other consequential remedies. To support their case, they presented the
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settlement deed / Ex.A1, which mentions the name of their father,
Dhanasegaran as the son of Thangavelu and Rachel. The plaintiffs argued
that their grand-parents owned 33 cents in Old Survey No. 259/2. They rely
on the A-register extract marked as Ex.A17, which pertains to
Thiruvanmiyur Village, where as Survey No. 269/2 stands in the name of
Patta No. 365, "j/nuhrt; / Tha.Roosav". The plaintiffs contended that the
name "Roosav" in the said register is a typographical error and it should be
"Rachel." They also produced their grand-mother Rachel’s Death
Certificate, marked as Ex.A12, to substantiate her identity.
32.The dispute centers around as to whether the suit Survey No.
259/2 belongs to the plaintiffs’ family. The contesting defendants claim
ownership of Survey Nos. 259/2, 259/3, 259/4, and 259/5. They rely on sale
deeds Ex.A4 to Ex.A11 to establish their title to the suit property. Notably,
Ex.A4 is a sale deed executed by Kesavan in favour of Samuvel on 22-05-
1967, transferring 71 cents in Survey Nos. 259/3, 259/4, and 259/5.
However, the Northern boundary of the property described in Ex.A4
mentions the land belonging to Chinna Kulandai, the plaintiffs’ great-
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grandfather.
33. The plaintiffs argue that the defendants’ vendor, M/s.Silk Asia
Exports Pvt. Ltd., fraudulently included Survey No.259/2 in their sale deed /
Ex.A5, despite having no title to it. This argument was upheld by the trial
Court, but overlooked by the learned first appellate Judge, leading to
misapprehension of the evidence.
34. Through Ex.A7 / sale deed, the Seventh defendant Ashok
Varghese / 1st respondent herein purchased the property from M/s.Silk Asia
Exports Pvt. Ltd. The boundary description reveals that, through Survey
Nos. 259/2, 259/3, 259/4, and 259/5, he purchased a portion of the property,
extending upto 71 cents. The description of boundaries mentions that the
Northern boundary is owned by Manjula, while the Southern boundary is
owned by Kalavathy and the Panchayadars, covering an extent of 3,191 sq.
ft., with other boundaries specified therein.
35. As per Ex.A8 / sale deed, the 8th defendant / Anand Varghese,
purchased property from M/s.Silk Asia Exports Pvt. Ltd. He acquired 4,509
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sq. ft. in suit Survey No. 259/2, wherein it is stated that his vendor derived
title from Manjula, through registered documents Nos.354/95 and 355/95.
These documents mention that 700 sq. ft. of the property was encroached
upon by the owner of the adjoining property, leaving only 3,850 sq.ft. in
possession of their vendor, M/s.Silk Asia Exports Pvt. Ltd.
36. During the arguments, the learned counsel for respondents 1 and 2
submitted that the said Manjula's documents were produced as additional
evidence before the first appellate Court by filing an application in I.A.2 of
2022 to receive the additional documents which, were annexed in the
additional typed-set of papers. Admittedly, the said Manjula purchased the
property through a sale deed, dated 23-03-1982 from Baby Ammal, who
acquired it through a sale deed dated 23-03-1982. Baby Ammal, the
daughter of Thangavelu (born through his wife Chellammal), derived her
right and title through a settlement deed for 33 cents in Survey No. 259/2,
which was divided into 16 cents each, with a 3/4 share in Survey No. 259/2.
37. The legal heirs of Baby Ammal executed two sale deeds in favour
of Manjula and Suseela Samuvel. Subsequently, both conveyed the
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properties to M/s.Silk Asia Exports Pvt. Ltd., the defendants herein.
Therefore, the learned counsel for Respondents 1 and 2 contended that, even
though the 1982 sale deeds in the names of Manjula and Suseela Samuvel
were not produced, their vendor derived title through these documents
concerning Survey No. 259/2. Hence, the learned first appellate Judge
rightly concluded their right and title, which requires no interference by this
Court.
38. Considering the arguments advanced on behalf of respondents 1
and 2, it is evident that their vendor, M/s.Silk Asia Exports Pvt. Ltd.,
purchased the property and established title to Survey No.259/2 through
Baby Ammal, who claimed to be the daughter of Thangavelu and
Chellammal. The plaintiffs, however, claimed to be the legal heirs of
Dhanasekaran born to their grand-father Thangavelu and grand-mother
Rachel. In the "A" Register extract (Ex.A-17), the name is mentioned as
"j/nuhrt;," but the grand-mother’s name is stated as Rachel.
39. Attention of this Court is drawn to the suit in O.S.No. 288 of
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1967, on the file of District Munsif Court, Poonamallee, filed by Baby
Ammal against Rachel and Dhanasekaran. In the suit, Baby Ammal claimed
ownership and title, stating that the property in Survey No. 259/2 originally
belonged to her grand-father / Chinnakulandai. After his demise, it passed
on to her father Thangavelu, who died in 1949 itself, and thereafter to her
mother, who died in 1954. Baby Ammal claimed sole possession of the
property thereafter. However, in 1964, the defendants / Rachel (since
deceased) and Dhanasekaran (since deceased) allegedly caused interference,
prompting her to file the suit in O.S.No.288 of 1967 to declare her
ownership and title. In the said suit, Rachel claimed to be the wife of
Thangavelu, and Dhanasekaran was asserted to be their son.
40. Considering the evidence, the learned trial Judge held that the
Patta for the Suit Survey No. 259/2 stands in the name of the first defendant
/ Rachel, from the year 1959 onwards. However, this does not take away the
right of Chellammal, who is the mother of Baby Ammal. Accordingly, the
suit property is deemed to be joint family property, in which, Thangavelu's
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wife, namely Chellammal, is entitled to 3/4th share. The first defendant /
Rachel, being a concubine, her son is entitled to 1/4th share. Accordingly,
the suit was decreed on 11.03.1969. Although the decree and judgment were
not produced initially, they can be admitted as additional evidence, since it
is a judgment passed by a Court of law in a case between Baby Ammal
(since deceased) and Rachel (since deceased).
41. The defendants trace their title to Baby Ammal in respect of Suit
Survey No.259/2, while the plaintiffs also trace their title to the same. This
makes the decree and judgment passed in O.S.No.288 of 1967 being
necessary documents. Considering the plaintiffs’ pleadings, this document,
being more than 30 years old and a public document, carries a presumption
of genuineness under Section 114 of the Indian Evidence Act, 1872. It is
therefore admitted as additional evidence and marked as Ex.A20.
42. One objection raised by the respondents herein, as well as the
learned first appellate Judge's observation, was that although the plaintiffs
claimed 33 cents as per the settlement deed, the boundary description
therein refers to only 9 cents. This discrepancy does not align with the
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settlement deed. However, as per the Judgment and decree dated
11.03.1969, passed in O.S. No. 288 of 1967, the plaintiffs’ father,
Dhanasegaran, was granted only a 1/4th share in 33 cents, amounting to
approximately 8.5 cents. The remaining 16 cents belong to Baby Ammal’s
family branch. Babyammal had already executed two sale deeds, each for
the same extent of 16.5 cents in Suit Survey No. 259/2. At the most,
Babyammal is entitled to a 3/4th share in 33 cents, amounting to 16 cents in
the suit survey. Neither Babyammal nor, the defendants' vendors, have
rights exceeding this.
43. Thus, even though the plaintiffs claimed 33 cents in the settlement
deed, their rights in accordance with the boundary description, amounted to
around 9 cents, which is legally sustainable. The plaintiffs’ father,
Dhanasegaran, was granted only a 1/4th share in Suit Survey No.259/2.
Considering the entire pleadings, the suit in O.S.No.658 of 2006 is
maintainable. The authority of the Supreme Court cited by the
appellants/plaintiffs, reported in AIR 1987 Supreme Court 1242 (Supra) is
acceptable.
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44. At the time of filing the suit in O.S.No.288 of 1967, the plaintiffs’
grandmother’s name was mentioned as Rachel. The defendants' vendors
filed a suit in O.S.No.658 of 2006 against her, and the learned trial Judge
found that the Patta for Suit Survey No. 259/2 stood in Rachel’s name from
1954 onwards. This patta, bearing No.365, is undisputed. The plaintiffs
established that the patta, which was mistakenly recorded as belonging to
"Roosav" in the A register extract, is actually in the name of Rachel. The
learned trial judge rightly appreciated that Rachel and Roosav are one and
the same person, but the learned first appellant Judge failed to appreciate the
said fact, which needs interference by this Court.
45. The Ryotwari Patta standing in Rachel's name establishes her
right and title over the suit property. The learned first appellate Judge's
findings, being perverse and unjust, are liable to be set aside. The Patta No.
365 is also mentioned in the defendants’ vendor’s sale deed. Thus, Suit
Survey No. 259/2 with Patta No. 365 is an admitted fact, confirmed by
Ex.A-17, which the trial court rightly appreciated.
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46. The learned first appellate Judge erroneously evaluated the facts,
leading to incorrect findings, which that must be set aside. Accordingly,
question of law in A, B, and C are answered in favour of the appellants
herein. Although, the authorities cited by the defendants are acceptable, they
are not applicable to the facts of the case on hand.
47. The plaintiffs are residing in the suit property and paying Taxes,
as evidenced by documents, such as the kist receipt (Ex.A2) and EB receipt
Ex.A3). The Advocate Commissioner’s report dated 15.03.2016, confirms
that B-Schedule property is a public lane, which was not objected to by the
contesting defendants who are respondents 1 and 2 herein.
48. The boundary descriptions in the documents refer to "Bakhinkam
Channel," which is now a public lane. The plaintiffs access to their property
(A-Schedule) is through this lane. The learned Advocate Commissioner’s
report also confirms that third parties' houses are adjacent to the said lane,
with entrances leading to it. This establishes that B-Schedule property is
indeed a public lane, as claimed by the plaintiffs.
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49. The learned trial Judge had properly appreciated the learned
Advocate Commissioner’s report and other evidence, but the learned first
appellate Judge failed to do so. This necessitates interference by this Court,
and the findings of the first appellate Judge are set aside. Consequently,
question of law in D and E are answered in favour of the plaintiffs. The suit
in O.S.No.658 of 2006 is decreed as prayed for, subject to the production of
certified copies of documents and additional title papers are hereby marked
as secondary document, namely as Ex.A.20 series.
50. Accordingly, this Second Appeal is allowed, setting aside the
Judgment and decree of the First Appellate Court and the connected
miscellaneous petition is closed. There shall be no order as to costs.
07.01.2025
Index : Yes/No
Neutral Citation : Yes/No
Speaking/Non Speaking order
rri
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To
1. The Subordinate Judge, Alandur.
2. The District Munsif, Alandur.
3.The Section Officer, VR Section, High Court of Madras.
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T.V.THAMILSELVI, J.
rri
and
07.01.2025
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