S.A.Nos. 461 & 469 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.01.2025
CORAM:
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
S.A. Nos.461 & 469 of 2012
S.A.No.461 of 2012
Malli's Resorts (P) Ltd.,
Rep. By its Managing Director,
A.V.Vinod Kumar Reddy
Flat No.3, Marer Estate,
102 South West Boag Road,
T.Nagar, Chennai – 600 017. ... Appellant / Plaintiff
Vs.
L.Leela
rep. By her Power Agent
Mr.M.B.Prakash
Devaneri village,
ECR Road,
Thirukkalikundram. ...Respondent / Defendant
Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, against the judgment and decree dated 30.05.2011 in A.S.No.30 of
2010 on the file of the Additional Subordinate Judge, Chengalpattu,
confirming the judgment and decree dated 31.08.2010 in O.S.No.43/2002 on
the file of the District Munsif cum Judicial Magistrate, Thirukkalikundram.
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S.A.Nos. 461 & 469 of 2012
S.A.No.469 of 2012
1. V.Ganesan
2. Silviya Sharma
3. Minor Prem
4. Minor Nithra
3 and 4th appellants are represented by their
mother Mrs.Silviya Sharma ... Appellants / Defendants
Vs.
L.Leela
rep. By her Power Agent
Mr.M.B.Prakash
Devaneri village,
ECR Road,
Thirukkalikundram. ...Respondent / Plaintiff
Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, against the judgment and decree dated 30.05.2011 in A.S.No.32 of
2010 on the file of the Additional Subordinate Judge, Chengalpattu,
confirming the judgment and decree dated 31.08.2010 in O.S.No.87/2001 on
the file of the District Munsif cum Judicial Magistrate, Thirukkalikundram.
In both appeals:
For Appellants : Mrs.R.V.Gayathri
for Mr.P.B.Ramanujam
For Respondents : Mrs.V.Srimathi
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S.A.Nos. 461 & 469 of 2012
COMMON JUDGMENT
The plaintiff is the appellant. A suit in O.S.No.43 of 2002 has been
filed by the plaintiff against the defendant for seeking the relief of permanent
injunction and the same was dismissed by the trial Court and the First
Appeal preferred by the plaintiff also got dismissed by confirming the
judgement of the trial Court. Hence the plaintiff has filed this second appeal.
2.The facts leading to the case of the plaintiff as pleaded in the
plaint are as under:
The suit property was originally belonged to one Saraswathy Ammal
and Munusamy who had sold the same in favour of one Maya Krishnan and
Pattammal through a registered sale deed dated 21.05.1993. The said Maya
Krishnan and Pattammal had sold the suit property in favour of the plaintiff
through a sale deed dated 24.01.1996. The plaintiff has purchased the lands
in Survey Number in S.Nos.55,56,57,60, 61, 62 and 63 which comprises
nearly 27 Acres in one block. The plaintiff had converted 27 Acres which is
inclusive of the suit property into farm resorts measuring 11 Cents each. The
Farm Nos.20 and 33 as shown in the layout sketch forms part of the suit
property in Survey No.60/20. The total extent purchased by the plaintiff from
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S.A.Nos. 461 & 469 of 2012
Maya Krishnan and another in S.No.60/20 was 13 cents. Out of the same the
plaintiff has sold 0.07 cents to the third parties and retained 0.06 Cents. He
has got a separate patta in respect of the remaining 6 Cents, which is being
used as a pathway. The plaintiff has been in possession and enjoyment of the
same without any disturbance. All of a sudden the defendant gave out a
threat for forcible dispossession of the plaintiff. The defendant is a total
stranger who has got no interest in respect of the suit property. The plaintiff
had perfected title to the suit property by long continuous and uninterrupted
possession for more than the statuary period. Since the defendant caused
trouble over the plaintiff's possession, the plaintiff has filed a suit for
permanent injunction against the defendants.
3. The averments in the written statement filed by the 1st defendant
in brief :
The defendant is the absolute and exclusive owner of the suit property.
She purchased the suit Survey No.60/20 which comprised an extent of 17
Cents which is inclusive of suit property measuring of 0.06 cents, from
Ranganathan and others through a registered sale deed dated 30.12.1987.
From then onwards the defendant is in possession and enjoyment of the
same. The original patta has been standing in the name of the defendants
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S.A.Nos. 461 & 469 of 2012
predecessors in title. Later the defendant got it transferred in his name. By
virtue of a long, continuous and uninterrupted possession and enjoyment
over the suit property, the defendant and her predecessors had perfected title
in the suit property. The alleged vendors of the plaintiff namely Maya
Krishnan and Pattammal have no title or possession or interest in the suit
property. Hence, they cannot pass any title in favour of the plaintiff. The
plaintiff has filed a suit in O.S.No.108/2001 against the defendant and her
husband in respect of the suit property and subsequently had withdrawn the
same. The said fact was suppressed in the suit. The suit property has not
been described properly. The suit is bad for non-joinder of necessary parties
and it is barred by Res judicata.
4. On the basis of the above pleadings, the Trial Court has framed the
following issues:
" 1.tHf;Fiu ml;ltizr; brhj;J jhth njjpapy;
thjpapd; RthjPd mDgtj;jpy; cs;sjh>
2. thjp nfhupa[s;s epue;jpu cWj;Jf;fl;lis ghpfhuk;
thjpf;F fpilf;fToajh>
3.ntW vd;d gupfhuk;> "
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S.A.Nos. 461 & 469 of 2012
5. During the course of the trial, on the side of the plaintiff, one
witness has been examined as PW.1 and Exs.A1 to Ex.A11 were marked. On
the side of the defendant, two witnesses have been examined as D.W.1 and
D.W.2 and Ex.B1 to Ex.B13 were marked.
6. After the conclusion of the trial and on considering the materials
available on records, the trial Court has dismissed the suit and the first
appeal preferred by the plaintiff also dismissed by confirming the judgement
of the trial Court. Now the plaintiff has filed the Second Appeal.
S.A.No.467/2002:
7. The other suit in OS.No.87/2001 has been filed by the defendants in
other suit in O.S.No.43 of 2002. The appellants are the defendants. The
plaintiff had filed the suit against the defendants for declaration and
permanent injunction in respect of the suit property and the same was
decreed by the trial Court. The First Appellate Court also dismissed the first
appeal preferred by the defendants by confirming the judgement and decree
of the trial Court and hence, the defendants have preferred this Second
Appeal.
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S.A.Nos. 461 & 469 of 2012
8. The averments made in the plaint filed by the defendants in
brief:
The plaintiff is the absolute owner of the suit property by purchase
through a registered sale deed dated 30.12.1987 from one Ranganathan and
others and he in enjoyment of the same from the date of its purchase. The
original patta was standing in the name of Munusamy Nayakkar who is the
father of the plaintiff's vendor. After the purchase, the patta has been
transferred in the name of plaintiff. The plaintiff has been in possession and
enjoyment of the suit property by virtue of long, continuous and
uninterrupted enjoyment over the suit property. The plaintiff has perfected
the title through adverse possession also. The plaintiff had executed a power
of attorney deed in favour of M.B.Prakash on 12.09.2001. The defendants do
not have any right or title or interest over the suit property. They have never
been in possession of the suit property. The defendants 1 and 2 have claimed
false claim over the suit property and tried to disturb the plaintiffs possession
and enjoyment, hence the plaintiff has filed the suit for declaration and
permanent injunction.
9. The averments made in the written statement filed by the 1st
defendant and adopted by the 2nd defendant and the legal heirs of the
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S.A.Nos. 461 & 469 of 2012
deceased 1st defendant who have been subsequently impleaded as D3 to
D5, in brief:
It is denied that the suit property was purchased by Leela and
Ranganathan and others under a sale deed dated 30.12.1987. The description
of the property is not correct. The defendants are not in possession and
enjoyment of the same. The suit property has been in possession and
enjoyment of the defendants vendors for several years and they have now
passed title in favour of the defendants through sale deeds dated 15.05.2000
and 05.03.1999 respectively. Subsequent to the purchase, the defendants 1
and 2 have taken possession and they were in enjoyment of the same. The 1st
defendant had put up a farm house and living there by paying house tax and
the 2nd defendant has been enjoying the farm resorts. The suit property is
not vacant as alleged by the plaintiff. The vendors of the defendant had
purchased the suit property which is 13 cents in Survey Number in
S.No.60/20 which has a different boundary. Out of 13 cents in S.No.60/20,
the farm lands and roads were laid. The extent of 17 cents in the boundary
given in the sale deed dated 30.12.1987 is not omitted and it will not
represent the suit property and the suit property is situated in different survey
number in S.No. 57/4. The defendants and his predecessors have perfected
their titled by long, continuous and uninterrupted enjoyment of the suit
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S.A.Nos. 461 & 469 of 2012
property. Hence the suit should be dismissed.
11. On the basis of the above pleadings the trial court has framed the
following issues:
" 1.thjp nfhUtJnghy; tHf;Fr; brhj;jpidg; bghWj;J
tpsk;g[if ghpfhuKk;/ mjid bjhlh;e;J epue;ju
cWj;Jf;fl;lis ghpfhuKk; thjpf;F fpilf;fj;jf;fjh>
2. tHf;F brhj;J rh;nt vz; kw;Wk; brhj;J tptu';fs;
rhptu tHf;Fiuapy; Fwpg;gplg;gl;Ls;sjh>
3.jug;gpdh;fSf;F fpilf;ff;Toa ,ju ghpfhuk; vd;d;> "
12. During the course of the trial, on the side of the plaintiff, two
witnesses have been examined as PW.1 and PW.2 and Ex.A1 to Ex.A13
were marked. On the side of the defendants, three witnesses have been
examined as D.W.1 to D.W.3 and Ex.B1 to Ex.B10 were marked.
13. After conclusion of the trial and on considering the materials
available on record, the trial Court decreed the suit and the appeal preferred
by the defendants also got dismissed by confirming the judgment of the trial
Court. Now the defendants have preferred this second appeal.
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S.A.Nos. 461 & 469 of 2012
14. Both the appeals have been admitted by framing the following
common substantial questions of law are framed:
“a) Whether both the Courts below erred in not properly considering
Ex.A1 which relates to a different survey number (i.e.) that is Survey
No.57/4?
b) Whether both the Courts below went wrong in declaring the title of
the plaintiff to the suit property for which not even boundaries have
been given by the plaintiff?
c) Whether both the Courts below failed to consider the fact that the
defendant did not enter the witness box and the evidence was deposed
only by the Power Agent, who did not have the personal knowledge
about the earlier transactions?
d) Whether the findings of both the Courts below can be termed as
perverse due to improper appreciation of the oral and documentary
evidence? ”
15. For the sake of convenience, the parties are referred to their
original ranking in the original suits filed before the trial Court.
16. Mrs.R.V.Gayathri, the learned counsel for the appellants submitted
that the suits have not been filed clearly. The description of the property
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S.A.Nos. 461 & 469 of 2012
dose not have clear boundaries which has no relevance to the issues raised in
these suits. The survey number in S.No.60/20 comprises 17 cents, but the
plaintiff has pleaded that it is only 13 cents. The plaintiff's title deed Ex.A1
itself would show an extent of 17 cents with specific boundaries, but it does
not tally with the description of the property shown in the plaint. The First
Appellate Court has also made an observation in its judgement that the
plaintiff had executed a general power of attorney in favour of one Prakash
through Ex.A13 dated 12.09.2001 in which, the description of the property is
shown with the similar boundaries but with different survey number in
S.No.57/4. That would only show that the plaintiff has got rights only in
survey number in S.No.57/4 and not in S.No.60/20 which was purchased by
the defendants. The defendants' documents Ex.B2 and Ex.B9 which are
pattas for the suit property standing in the name of the defendants have not
been considered by the Courts below. The plaintiff has got no clarity as to
the property for which he is seeking the relief of declaration, as he has
improperly described the property and the suit schedule without any
boundaries and the power of attorney document Ex.A13 also has a different
survey number but with the same boundaries in Ex.A1.
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S.A.Nos. 461 & 469 of 2012
17. Mrs.V.Srinithi, the learned counsel for the respondents, submitted
that the plaintiff has filed the suit without proper description of the suit
property. As it is seen in the property details, the particulars of the property
in the plaint did not have any boundary details. So it is claimed by the
appellant / defendant that the boundary details would correlate to only
Survey Nos.57/4 which is away from the suit property. But the defendant’s
purchaser Vinoth Kumar has already filed a suit in O.S.No.108/2001 in
respect of the same property claiming that the same has been withdrawn.
D.W.2 has further stated that in respect of the suit property patta has been
originally granted in the name of Munusamy Naicker in Patta No.447.
18. The plaintiffs have purchased the suit property from the legal heirs
of Munusamy Naicker through Ex.A1 sale deed. The defendants who are the
purchasers from D.W.2 can get title only if P.W.2 himself has got title to the
suit property. The defendants relied upon Ex.B5 which is said to be the
Power of Attorney executed in favour of the plaintiff from one Renganathan
and others in respect of Survey No.57/4 and the boundaries for the said
property are also similar to that of the boundary details of the particulars of
property in Ex.A1. By citing the above details it is claimed by the defendants
that the plaintiff had actually purchased the property in S.No.57/4 but
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S.A.Nos. 461 & 469 of 2012
claiming title in respect of S.No.60/20. The plaintiff’s predecessor in title
Munusamy had the patta for the property in S.No.60/20 in Patta No.447
which has been subsequently converted in the name of the plaintiff in Patta
No.544.
19. So far as D.W.2 Vinoth Kumar is concerned, the patta number for
the property which he transacted relates to Survey No.446. One pertinent
observation that has been made by the trial Court assumes more relevance. It
has been observed that the defendant’s predecessor Maya Krishnan had
purchased 19 cents from one Saraswathi, Ramalingam and Mani through a
registered sale deed dated 25.09.1993 which has been marked as Ex.B6. In
the said sale deed though the extent has been shown as 19 cents, in the
particulars of the property, the survey number has been corrected. The trial
Court observed that the survey number has been corrected from S.No.60/30
to S.No. 60/20 and the boundary details of the said sale deed does not tally
with the boundaries with the suit property.
20. The learned counsel for the appellant submitted that without a
clear boundary the plaintiff cannot file a suit for declaration. The
Commissioner who has been appointed in this case had visited the suit
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S.A.Nos. 461 & 469 of 2012
property and stated in his report that the property has been identified by the
parties and he had also given the boundary details for the property. In his
report it is seen that there are some make belief arrangements made in the
suit property in order to show that it has been planted with saplings and
bordered with pillars fixed on the ground. For the reasons best known to the
defendants they did not chose to mark the Commissioner’s report, through
the Commissioner has been appointed at their instance. In the property
details of the plaintiff’s predecessor in title, the difference in the patta
number, cannot make a better case for the defendant in respect of his right
over the suit property.
21. However the learned counsel for the appellant submitted that it is
the plaintiff who had filed the suit for the declaration and permanent
injunction and hence the burden lies upon the plaintiff to prove the same by
pleading positive evidence. It is true that the plaintiff has the burden to prove
the suit property belongs to him. So far as the survey number and the extent
is concerned, that tallies with Ex.A1. Though the general principle that
boundaries will prevail over the survey number, the contradiction with
respect to the extent has arisen in this suit. So far as the plaintiff is
concerned, he is very much definite about the extent and survey number that
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S.A.Nos. 461 & 469 of 2012
he had purchased 13 cents in S.No.60/20.
22. Whatever may be the case the plaintiffs have proved
preponderance in their favour by producing Ex.A1 sale deed which pertains
to S.No.60/20 for an extent of 13 cents and his predecessor in title namely
Munusamy also had the patta for the suit property in Patta No.447. So far as
the defendants are concerned the title deed of their predecessor mentions
about an extent of 19 cents and Survey Number also appears to have been
altered from S.No.60/30 to 60/20. So while applying the principle that
boundaries would prevail over survey number and extent, the above
preponderance in favour of the plaintiff cannot be overlooked. Had the
defendants proved a better case by showing any concrete proof in respect of
the suit property which matches with the extent and survey number, the same
could have been taken into consideration.
23. From the materials available on record the courts below have come
to an inevitable conclusion that the defendants’ predecessor had actually
purchased an extent of 19 cents in S.No.60/30 but later executed sale deed in
favour of P.W.2 (Ex.B7). Though the plaintiff did not come with specific
boundaries he had proved a better title than the defendants as he could
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produce patta in favour of his predecessor in title. His sale deed Ex.A1 also
tallies with S.No.60/20 and the extent of 13 cents. S.No.60/20 has been sub-
divided and the field map is available to identify the location of S.No.60/20
and that it measures only 13 cents. In fact that forms part of the
Commissioner’s report which was not marked by the defendants.
24. The defendants have claimed that there are 17 cents in S.No.60/20.
In reality S.No.60/20 only has 13 cents and it is a single property. The above
facts has been admitted by D.W.2 also in his evidence. So the courts below
have adopted the rule of preponderance which is the standard of proof for the
civil disputes. Even though the appellant have raised certain technicalities as
to non-mentioning of the boundaries, that do not impact the whole material
available on record.
25. As the documents only reveal that Ex.A1 reflects S.No.60/20 and
not S.No. 57/4 as stated in the substantial question of law, that will not go in
favour of the appellant.
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S.A.Nos. 461 & 469 of 2012
26. As the lower court has gone with the documentary evidence of the
patta standing in the name of the predecessor of the plaintiff and the
plaintiff’s title deed and also the Commissioner’s report, in arriving at the
conclusion that the suit property belongs to the plaintiff, I do not find any
factual or legal infirmity. As the trial Court had adopted the principle of
preponderance of probabilities as the standard proof for decreeing the suit in
favour of the plaintiff, the substantial questions of laws are answered against
the appellant.
27. In the result, these Second Appeals are dismissed and the
judgment and decree of the lower appellate Court is confirmed. No costs.
30.01.2025
Index:Yes/No
Speaking Order / Non-speaking order
Neutral Citation Case : Yes / No
bkn
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S.A.Nos. 461 & 469 of 2012
R.N.MANJULA, J.
bkn
To:
1. TheAdditional Subordinate Judge, Chengalpattu.
2. The District Munsif cum Judicial Magistrate, Thirukkalikundram
S.A. Nos.461 & 469 of 2012
18.01.2025
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