Madras High Court
Kumara Ravikumar vs K.Chandrasekaran @ Durai on 8 January, 2025
2025:MHC:4337
S.A.No.91 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 01 / 10 / 2024
JUDGMENT PRONOUNCED ON : 08 / 01 / 2025
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.91 OF 2018
AND
CMP NO.2015 OF 2018
Kumara Ravikumar ... Appellant / Appellant /
1st Defendant
Vs.
1.K.Chandrasekaran @ Durai
2.C.Krishnaveni ... Respondents 1 & 2 /
Respondents 1 & 2 /
Plaintiffs
3.Sakunthala ... 3rd Respondent /
2nd Defendant
[Note: 3rd Respondent is given up since
she remained ex-parte and was not
added as party (respondent) to the
Appeal Suit in A.S.No.9 of 2017 on the
file of the Subordinate Court,
Sathyamangalam. Further, the appellant
herein is not claiming any relief against
the 3rd respondent]
https://www.mhc.tn.gov.in/judis Page No.1 of 16
S.A.No.91 of 2018
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
October 20, 2017 made in A.S.No.9 of 2017 by the Subordinate Court,
Sathyamangalam, concurring with the Judgment and Decree dated
October 17, 2016 made in O.S.No.207 of 2013 by the District Munsif,
Sathyamangalam.
For Appellant : Mr.A.Sundaravadhanan
For Respondents 1&2 : Mr.S.Mukund
Senior Counsel
for M/s.I.C.Vasudevan
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated October 20, 2017, passed in A.S.No.9 of 2017 by the
'Subordinate Court, Sathyamangalam' ['First Appellate Court' for brevity],
whereby the Judgment and Decree dated October 17, 2016 passed in
O.S.No.207 of 2013 by the 'District Munsif, Sathyamangalam' ['Trial
Court' for brevity] was confirmed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFFS' CASE
3. Brief facts necessary for the disposing of this Second
Appeal are as follows:
https://www.mhc.tn.gov.in/judis Page No.2 of 16
3.1. The plaintiffs are husband and wife and they have been
living in the farm house in the Suit Property. 1st defendant is the younger
brother of the 1st plaintiff, while 2nd defendant is his elder sister. The 1st
and 2nd defendants own lands adjoining the Suit Property.
3.2. The first plaintiff, the defendants 1 and 2 along with their
mother and two other brothers divided their ancestral properties by a
Registered Partition Deed dated June 18, 1983. Vide the said Partition
Deed, first plaintiff was allotted ‘C’ Schedule Properties therein
consisting of 4.41 Acres of land in Survey No.314, and the first defendant
was allotted ‘D’ Schedule Properties therein, while their mother –
Rajammal was given life estate over ‘A’ Schedule Properties therein
which consists of 2 Acres of land in R.Survey No.314/3. According to the
said Partition Deed, after Rajammal’s lifetime, first plaintiff and first
defendant alone are entitled to ½ share each over the said ‘A’ Schedule
Properties. Accordingly, post the lifetime of Rajammal, the plaintiff
became entitled to 5.41 Acres (4.41 Acres + 1 Acre).
3.3. Even though vide Partition Deed dated June 18, 1983
Rajammal was given life estate over 'A' Schedule property thereunder
consisting of two Acre of land, she never took possession of the same.
https://www.mhc.tn.gov.in/judis Page No.3 of 16
Instead, during the lifetime of Rajammal itself, first plaintiff and first
defendant took possession of their respective shares in the said two Acre
of land i.e., one Acre each and began enjoying it.
3.4. The first plaintiff has settled in favour of second
plaintiff/ his wife, an extent of 30 Cents along with common 1/7 share in
well vide registered Settlement Deed dated December 22, 2005.
3.5. Upon measuring the Suit Property, the first plaintiff
learnt that he is in possession and enjoyment of only 5.19 Acres instead of
5.41 Acres, after leaving common Cart Track on all sides of his land. The
first plaintiff has perfected title from 1983 to an extent of 5.19 Acres
along with his wife.
3.6. The defendants obstructed the plaintiffs from harvesting
the ripen crop in the Suit Property and threatened them on September 10,
2012.
3.7. Hence, the Suit for declaration of title, permanent
injunction, demarcating the Suit Property (5.19 Acres), costs and other
reliefs.
https://www.mhc.tn.gov.in/judis Page No.4 of 16
DEFENDANTS’ CASE
4. The defendants filed separate written statements denying
the plaint averments. Sum and substance of their written statements is that
the registered Settlement Deed dated December 22, 2005 is not valid and
binding on the defendants for various reasons. The first plaintiff had no
right to execute the same when he himself is not aware of the extent under
his possession. Further, the mother – Rajammal was alive on the date of
Settlement Deed and the first plaintiff was entitled to only 4.41 Acres.
Further, the Settlement Deed is in respect of common 30 Cents and hence,
the first plaintiff could not have handed over possession to second
plaintiff. The first plaintiff refused to measure the properties and
demarcate their respective boundaries, when called upon by the
defendants. Boundaries are not yet ascertained. Further, the plaintiffs
claim that they are in possession and enjoyment of 5.41 Acre but the Suit
Property as described by the plaintiff in the Suit description of property is
only 5.19 Acre. There is no information about the alleged remaining 22
Cents.
4.1. 30 feet common Cart Track to the east of first
defendant’s house is in existence. Further, another Cart Track formed in
https://www.mhc.tn.gov.in/judis Page No.5 of 16
the first plaintiff’s land for the usage of the first defendant has been
obliterated by the plaintiff in 2011. Furthermore, the Cart Track
mentioned in the Partition Deed dated June 18, 1983 on the western
boundary of Survey No.314 was never formed. The first plaintiff wilfully
and wantonly disobeyed the recitals of the said Partition Deed. The first
defendant’s wife passed away in 2008 and he has buried her body in the
land under his possession and enjoyment which was allotted to him under
the said Partition Deed, but the plaintiff purposely included that land in
the plaint plan for the purpose of grabbing it from the first defendant. The
description of property as well as the plaint plan is incorrect. In these
circumstances, the relief of declaration of title and permanent injunction
cannot be granted. Accordingly, they sought to dismiss the Suit.
TRIAL COURT
5. At trial, first plaintiff examined himself as P.W.1 and Ex-
A.1 to Ex-A.14 were marked on the side of the plaintiffs. On the side of
the defendants, first defendant was examined as D.W.1 and no documents
were marked. Advocate-Commissioner's Report and Plan were marked as
Ex-C.1 and Ex-C.2 and plan of the Surveyor was marked as Ex-C.3.
https://www.mhc.tn.gov.in/judis Page No.6 of 16
6. Upon hearing both sides and considering the evidence
available on record, the Trial Court concluded that as the extent and four
boundaries are clearly described in the Suit description of property, there
is no need to demarcate the Suit Property and ascertain them again.
Accordingly, the Suit qua demarcation of Suit Property was dismissed by
the Trial Court. Further, considering the available evidence, the Trial
Court decreed the Suit qua declaration and permanent injunction.
FIRST APPELLATE COURT
7. Feeling aggrieved, the first defendant preferred an appeal
before the First Appellate Court, which after hearing both sides and
perusing the documents available on record, dismissed the appeal by
concurring with the findings of the Trial Court.
SECOND APPEAL
8. Feeling aggrieved, the first defendant has preferred this
Second Appeal which was admitted by this Court on December 1, 2023
on the following Substantial Question of Law:
https://www.mhc.tn.gov.in/judis Page No.7 of 16
'(i) Whether the Courts below are justified in granting a decree for
declaration and injunction, when the Cart Track mentioned by
the plaintiff as a boundary for three sides of the Suit Property
was not identified by the Surveyor in his plan Ex.C3?'
ARGUMENTS:
9. Mr.A.Sundaravadhanan, learned Counsel for the appellant/
first defendant would argue that the Trial Court as well as the First
Appellate Court failed to consider the recitals contained in Ex-A.2 –
Partition Deed, which clearly lays down that after the demise of
Rajammal, the northern half of ‘A’ Schedule Property under Ex-A.2
belongs to the plaintiff and the southern half thereof belongs to the first
defendant. Further the plaint description of property is wrong as it
includes the first defendant’s property, contrary to the terms of Ex-A.2 –
Partition Deed. The Advocate Commissioner appointed by this Court filed
Report and Plan which are also not in accordance with the terms
contained in Ex-A.2 – Partition Deed. ‘A’ Schedule Properties under Ex-
A.2 which was originally allotted to mother – Rajammal as life estate,
after her demise, has to be divided as per the terms contained in Ex-A.2
and not otherwise. However, there was no such partition after her demise.
Hence, the plaintiff ought to have filed a Suit for partition in respect of
https://www.mhc.tn.gov.in/judis Page No.8 of 16
‘A’ Schedule Properties under Ex-A.2. Instead of partitioning the ‘A’
Schedule Properties under Ex-A.2 as per the terms contained therein after
the demise of Rajammal, the plaintiff cannot arbitrarily claim his ½ share
of ‘A’ Schedule Properties in the first defendant’s ‘D’ Schedule Properties
for his convenience. The Trial Court and the First Appellate Court failed
to appreciate the evidence in the right perspective and decreed the Suit.
Accordingly, he would pray to allow the Second Appeal, set aside the
Judgment and Decree of First Appellate Court and the Trial Court, and
dismiss the Suit.
10. Mr.S.Mukund, Senior Counsel for M/s.I.C.Vasudevan,
learned Counsel on record for the respondents 1 and 2 / plaintiffs would
argue that though the first plaintiff is entitled to an extent of 4.41 Acres,
on the ground, the plaintiffs are enjoying only an extent of 4.19 Cents.
The first plaintiff’s mother – Rajammal passed away. Hence, as per the
terms of Ex-A.2 - Partition Deed, the plaintiff is entitled to the northern 1
Acre of properties allotted to Rajammal. Accordingly, the plaintiff is in
possession and enjoyment of 5.19 Acres (4.19 Acre + 1 Acre). The Suit
Property and its boundaries are identified by the Advocate Commissioner
https://www.mhc.tn.gov.in/judis Page No.9 of 16
in Ex-C.1 and Ex-C.2 – Report and Plan and Ex-C.3 – Surveyor's plan.
The First Appellate Court and the Trial Court appreciated the evidence in
the right perspective and decreed the Suit. There is no reason to interfere
with the same. Accordingly, he would pray to dismiss the Second Appeal,
and confirm the Judgment and Decree of First Appellate Court and the
Trial Court
DISCUSSION:
11. This Court has heard on either side and perused the
materials available on record in light of the Substantial Question of Law.
12. The first plaintiff is the elder brother of the first
defendant. The second defendant is the elder sister of the first plaintiff
and first defendant. The second plaintiff is the wife of first plaintiff. The
first plaintiff and defendants 1 and 2 along with their mother – Rajammal
and their two other brothers, entered into registered Partition Deed (Ex-
A.2) in 1983, whereby Rajammal was given life estate over ‘A’ Schedule
Properties therein and after her lifetime, the agricultural land therein alone
was to be divided equally among the first plaintiff and the first defendant
in a manner contiguous to their respective properties allotted under Ex-
https://www.mhc.tn.gov.in/judis Page No.10 of 16
A.2 – Partition Deed. Further, the first plaintiff was allotted ‘C’ Schedule
Properties therein, first defendant was allotted ‘D’ Schedule Properties
therein and the second defendant was allotted ‘E’ Schedule Properties
therein. Perusal of Ex-A.2 would further reveal that the pathway / Cart
Track of 30 feet width situate on the eastern side of the properties covered
thereunder was to be enjoyed in common inter alia by the plaintiff and the
first defendant. It further reveals that the Cart Track situate towards the
west of the properties covered thereunder shall be used in common by the
plaintiff and the first defendant and that the plaintiff is to leave 15 feet
Cart Track on the south - eastern boundary of ‘C’ Schedule Properties
under Ex-A.2, for the first defendant to access the aforesaid 30 feet
pathway / Cart Track through ‘A’ Schedule Properties and ‘E’ Schedule
Properties therein. It is apposite to extract the terms of Ex-A.2 – Partition
Deed hereunder:
'. . . 1 yf;fkpl;lthpd; $Ptjpirf;Fg;
gpd;dpl;L 3/ 4 yf;fkpl;lth;fs; mtuth;
g';Ff;F neuhf cs;s g{kpia rhpghjpahf
gphpj;Jf; bfhs;s ntz;oaJ vd;Wk;
fPH;fz;l g{kpapd; fpHg[u vy;iyapy; cs;s 30
mo mfy jlj;ij ek;kpy; 1/ 3/ 4/ 6
yf;fkpl;;lth;fs; bghJtpy; mDgtpj;Jf;
https://www.mhc.tn.gov.in/judis Page No.11 of 16
bfhs;s ntz;oabjd;Wk; fPH;fz;l g{kpapd;
nky;g[u vy;iyapy; bghJthf cs;s
tz;oj;jlj;ij ek;kpy; 3/ 4 yf;fkpl;lth;fs;
cgnahfpj;Jf;bfhs;s ntz;oabjd;Wk;
mij ahUk; jil bra;af;TlhJ vd;Wk; D
b#oa{y; g';Ff;F C b#oa{y; jhuh; jdJ
g';fpd; fpHg[u vy;iyapy; 15 mo mfyj;jpy;
nkny brhd;d 30 mo mfy jlj;jpypUe;J –
uh$k;khs; D b#oa{y; g';F tiu xU
tz;oj;jlk; tpl;Ltpl ntz;oabjd;Wk;
mij C b#oa{y;fhuh; ve;jtpjj;jpYk; jil
bra;af;TlhJ vd;W . . .'
13. Hence, the plaintiff has to divide his half share in the ‘A’
Schedule Properties under Ex-A.2 in the manner stated therein. To put it
differently, he can claim only the northern portion of ‘A’ Schedule
Properties under Ex-A.2 which is contiguous to his ‘C’ Schedule
Properties. He cannot claim his half share over ‘A’ Schedule Properties
under Ex-A.2, in the first defendant’s ‘D’ Schedule Properties.
14. Moreover, in this case, Advocate Commissioner was
appointed and he filed Report and Plan on April 24, 2015 marked as Ex-
C.1 and Ex-C.2 respectively. And the Surveyor’s sketch was marked as
https://www.mhc.tn.gov.in/judis Page No.12 of 16
Ex-C.3. On perusal of the above documents, it is seen that the Advocate
Commissioner has perfectly identified the properties as per the allotment
in Ex-A.2 – Partition Deed. He has also noted that though the plaintiff
was allotted 4.41 Acre, in reality, he is possession and enjoyment of only
about 4.19 Acres i.e., 2.55 Acre land and 10 Cents along with a Well in
Survey No.314/3, and 1.50 Acre land and 6 Cents House in Survey
No.314/1. The plaintiff also claims only 5.19 Acres including his half
share in 2 Acre land in ‘A’ Schedule Properties under Ex-A.2. As per Ex-
C.1, Ex-C.2 and Ex-C.3, the first defendant is in possession and
enjoyment of the 3.50 Acre, which is in tune with the allotment under Ex-
A.2. However, the western side Cart Track mentioned in Ex-A.2 –
Partition Deed is not in existence and hence, it has to be formed as per
Ex-A.2.
15. The Report of the Advocate Commissioner appointed by
this Court is not in tune with the manner of allotment recited in Ex-A.2 –
Partition Deed and hence, it deserves to be rejected.
16. There is no need to file a separate Suit for dividing the ‘A’
https://www.mhc.tn.gov.in/judis Page No.13 of 16
Schedule Properties, as they have already been clearly divided in Ex-A.2–
Partition Deed. Failing to appreciate the above facts, the Trial Court erred
in relying on the Suit description of property, which is described
incorrectly, and including the first defendant’s ‘D’ Schedule Properties
while partitioning the first plaintiff’s half share in his mother’s life estate.
The First Appellate Court also failed to consider the above aspects and
erred in dismissing the appeal by concurring with the findings of the Trial
Court. Substantial Question of Law is answered accordingly.
17. That apart, the first defendant cannot question the
registered Settlement Deed executed by the first plaintiff in favour of his
wife / second plaintiff for the reason that it was executed in respect of his
shares allotted to him in Ex-A.2 – Partition Deed. It does not affect the
first defendant’s rights in any manner. Moreso, the first defendant is not
claiming any right through the 2nd plaintiff and the 1st defendant cannot
question the action of the 1st plaintiff in respect of his properties i.e., 'C'
Schedule properties allotted under Ex-A.2 – Partition Deed. The validity
of the said registered Settlement Deed need not be determined in this case
as it does not impact this case in any manner.
https://www.mhc.tn.gov.in/judis Page No.14 of 16
CONCLUSION:
18. Resultantly, in the facts and circumstances of this case,
and in the interest of justice, the Second Appeal is partly allowed and a
preliminary Decree is passed in the following terms:
(a) The first plaintiff is entitled to partition ‘A’ Schedule
Properties under Ex-A.2 – Partition Deed as per the terms
contained therein;
(b) The western side Cart Track described in Ex-A.2 has to be
formed within three months from the date of this Judgment;
(c) The East – West Cart Track described in Ex-A.2 should not
be obliterated by the plaintiffs;
(d) Report and Plan of the Advocate Commissioner [Ex-C.1 and
Ex-C.2] along with the Surveyor’s Plan [Ex-C.3] shall form a
part of the Decree;
(e) Considering the relationship between the parties, there shall
be no order as to costs. Consequently, connected Civil
Miscellaneous Petition is closed.
08 / 01 / 2025
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation : Yes / No
TK
https://www.mhc.tn.gov.in/judis Page No.15 of 16
R. SAKTHIVEL, J.
TK
To
1.The Subordinate Court
Sathyamangalam.
2.The District Munsif Court
Sathyamangalam.
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.91 OF 2018
08 / 01 / 2025
https://www.mhc.tn.gov.in/judis Page No.16 of 16
