Madras High Court
D.Sarasu vs Palanivelu on 9 June, 2025
S.A.(MD)No.90 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.06.2025
CORAM
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
S.A.(MD)No.90 of 2019
and
C.M.P.(MD)No.2428 of 2019
D.Sarasu ... Appellant
vs
Palanivelu ...Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree passed in A.S.No.35 of
2017 dated 21.08.2018 on the file of the Subordinate Court, Devakottai
reversing the judgment and decree passed in O.S.No.152 of 2013 dated
22.09.2017 on the file of the District Munsif cum Judicial Magistrate,
Karaikudi.
For Appellant : Mr.G.Ramanathan
for Mr.K.Sreekumaran Nair
For Respondent : Mr.R.Sundar Srinivasan
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S.A.(MD)No.90 of 2019
JUDGMENT
This Second Appeal is filed as against the judgment and decree, dated
21.08.2018 on the file of the Subordinate Court, Devakottai in A.S.No.35 of
2017 reversing the judgment and decree, dated 22.09.2017 in O.S.No.152 of
2013 on the file of the District Munsif cum Judicial Magistrate Court,
Karaikudi.
2.The plaintiff in the suit is on appeal. The parties are referred to, as
per their status before the trial Court.
3.It is the case of the plaintiff that the vendor of the plaintiff,
Maragathamammal purchased the plaint 'A' schedule property on
24.09.1975 in Ex-A1 and thereafter, sold the same in favour of the plaintiff
on 23.08.1995 in Ex-A2. According to the plaintiff, even pursuant to the
sale in Ex-A2, the vendor, Maragathamammal, continued to be in
possession of the property, as a tenant and vacated and handed over the
possession of the house in the suit property in the year 2007. According to
the plaintiff, plaint 'B' schedule property is part of plaint 'A' schedule
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property and around the year 2008, the defendant, while he constructed a
house, had encroached a portion of the property of the plaintiff, which is
shown as plaint 'B' schedule property and had planted trees. The plaintiff
had demanded the defendant to vacate the encroachment and issued a notice
in Ex-A8 for which, the defendant had issued a reply notice in Ex-A9.
Thereafter, the plaintiff had come up with the suit for declaration and
recovery of possession of the plaint 'B' schedule property.
4.The defendant resisted the suit by filing a written statement
disputing that plaint 'B' schedule property is a part of plaint 'A' schedule
property. According to the defendant, the plaint 'B' schedule property is
part of the property of the defendant purchased by him in the year 1974 in
Ex-B4 and the defendant had also obtained patta for the property in Ex-B1
and sought for dismissal of the suit.
5.During trial, the plaintiff examined herself as PW-1 and Ex-A1 to
Ex-A9 were marked. On the side of the defendant, he examined himself as
DW-1 and marked Ex-B1 to Ex-B4. An Advocate Commissioner was
appointed and his report along with plan were marked as Ex-C1 and Ex-C2.
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6.The trial Court after considering the evidences and documents
found that the suit property absolutely belongs to the plaintiff and the
defendant has encroached the plaint 'B' schedule property and decreed the
suit. Aggrieved, the defendant had preferred an appeal in A.S.No.35 of
2017 and the lower appellate Court, after re-appraising the evidences,
allowed the appeal on the ground that even as per the documents relied on
by the plaintiff in Ex-A1 and Ex-A2, already the plaintiff is having an
excess of land purchased by her and therefore, the claim made by the
plaintiff to the effect that the plaint 'B' schedule property forms part of
plaint 'A' schedule property is not sustainable. The lower appellate Court
further found that, in fact, the vendor of the plaintiff had already sold an
excess of land than what she has purchased in Ex-A1 and further, from the
Advocate Commissioner's report, it is confirmed that now the plaintiff is
already having further extent of land than what was conveyed by her vendor
in Ex-A2. Assailing the reversal of the decree in the appeal, the plaintiff is
before this Court on appeal.
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7.This Court, by order, dated 19.03.2019, admitted the Second
Appeal on the following substantial question of law:
“Whether the lower appellate Court is right in
overlooking the admission of the defendant that he had
absolutely no title for S.No.428/3, especially when the
defendant did not plead and prove adverse possession to any
extent in S.No.428/3?”
8.Mr.C.Ramanathan, learned Counsel appearing for the appellant
contended that when the vendor of the plaintiff had purchased the property
to an extent of 9.25 cents in Ex-A1, she executed a sale deed in favour of
the plaintiff in Ex-A2 in respect of 9.33 cents. It is his contention that
though there is a marginal difference in the extent, it does not bring about
any material change, as the property is covered in S.No.428/3 and the entire
extent, as mentioned in the sale deed, was in the possession of the plaintiff's
vendor, which was handed over to the plaintiff.
9.It is his further contention that the extent in document in Ex-A1 is
fortified, in view of the patta granted in favour of the plaintiff in Ex-A5,
which also corresponds to an extent of 9.33 cents. The learned Counsel by
relying on the Advocate Commissioner's report and plan in Ex-C1 and Ex-
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C2, contended that, in fact, the Advocate Commissioner had made it clear
that the plaint 'B' schedule property forms part of plaint 'A' schedule
property and the marking made in the plan makes it evident. It is his
contention that when once the extent of plaint 'B' schedule property is found
to be a part of plaint 'A' schedule property, then the plaintiff is the owner in
respect of the lands in S.No.428/3 and the defendant is only concerned and
have ownership in respect of the lands in S.No.428/4. The trial Court rightly
considered this aspect and had decreed the suit, which has been erroneously
reversed by the appellate Court by making calculation, which on the face of
the record is not correct and thereby, submitted that the finding arrived at by
the appellate Court is perverse and sought for interference of this Court.
10.Mr.R.Sundar Srinivasan, learned Counsel for the respondent
submitted that plaint 'B' schedule property is not a part of plaint 'A' schedule
property and in fact, the very documents filed by the plaintiff in Ex-A1 and
Ex-A2, make it clear that what has been purchased by the plaintiff was only
an extent of 4067 sq.ft., but what was found to be in possession of the
plaintiff, as of now, is 4132.75 sq.ft., which already is in excess and
therefore, the claim of the plaintiff in respect of plaint 'B' schedule property
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is not sustainable. The learned Counsel by placing reliance on the cross
examination of PW-1, submitted that when the plaintiff himself has
admitted that the plaint 'B' schedule property belongs to the defendant, then
there is no further issue, that remains to be dealt with in respect of the claim
of the plaintiff for the plaint 'B' schedule property.
11.The learned Counsel further submitted that when it is an admitted
case of the plaintiff that she herself had constructed the compound wall and
further, the defendant has constructed a house in the year 1975 and has been
residing there, the suit filed by the plaintiff for declaration and recovery of
possession in the year 2013 is completely beyond the period of limitation.
The learned Counsel submitted that the issue of limitation is to be seen de
horse the defence taken by the defendant in view of Section 3 of the
Limitation Act.
12.Heard the rival submissions and perused the materials available on
record.
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13.Admittedly, the plaintiff had purchased the plaint 'A' schedule
property from one Maragathamammal through Ex-A2, dated 23.08.1995.
As per the sale deed, the plaintiff had been conveyed with an extent of 4067
sq.ft. (9.33 cents). The plaintiff's vendor, Maragathamammal had purchased
the plaint 'A' schedule property through a sale deed, dated 24.09.1975 in
Ex-A1. In the sale deed in Ex-A1, Maragathamammal had purchased an
extent of 4033 sq.ft (9¼ cents). A perusal of the two sale sale deeds in Ex-
A1 and Ex-A2 makes it evident that Maragathamammal had purchased only
an extent of 9¼ cents through Ex-A1 but she had conveyed an extent more
than what she had purchased in Ex-A1, while sale deed was executed in
favour of the plaintiff in Ex-A2. Admittedly, at least 34 sq.ft., ie., 0.08
cents had been conveyed in excess in favour of the plaintiff. Further, it is
relevant to note at this juncture that even the patta filed by the plaintiff in
Ex-A5 in respect of plaint 'A' schedule property is in respect of 3.78 ares,
which is corresponding to 9.33 cents.
14.It is the specific case of the defendant that plaint 'B' schedule
property does not form part of plaint 'A' schedule property and they have
never encroached any portion of the property belonging to the plaintiff.
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When the plaintiff has come with the suit for declaration and recovery of
possession, the onus is on the plaintiff to establish the title in respect of
which he claims right and prove the fact that the plaint 'B' schedule property
forms part of plaint 'A' schedule property. It is the vehement contention of
the learned Counsel for the appellant that the defendant has not produced
any document to show that he is having title and he is not in encroachment
of the plaint 'B' schedule property. This Court is not in a position to
appreciate the arguments advanced on the side of the appellant in this
regard, as in view of Section 101 of the Indian Evidence Act, 1872, onus is
on the plaintiff to prove the fact he asserts and further as per Section 102 of
Indian Evidence Act, 1872, the burden of proof in a suit lies on the person,
who would fail, if no evidence is given by either of party. As such, the
plaintiff cannot rely on the loophole or weakness in the case of the
defendant to succeed, rather the plaintiff has to succeed on her own strength
by adducing adequate documents and evidences to substantiate her claim.
15.At this juncture, it is relevant to note that the plaintiff, who has
examined herself as PW-1, has categorically admitted in her cross
examination that plaint 'B' schedule property belongs to the defendant.
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When there is a specific admission on the part of the plaintiff herself to the
effect that plaint 'B' schedule property belongs to the defendant, then the
entire relief sought for by the plaintiff seeking for declaration and recovery
of possession in respect of plaint 'B' schedule property have to necessarily
fail. Further, PW-1 had also categorically admitted that the plaintiff had
herself put up the compound wall in plaint 'A' schedule property and the
defendant had constructed the house in the year 1975 itself and are living
there.
16.It is specifically admitted by the plaintiff that she herself has put
up the compound wall and further the defendant had constructed a house in
the year 1975 and is living there. When the plaintiff has come up with the
suit for recovery of possession claiming an encroachment, the plaintiff, who
admits that the construction of the defendant was made in the year 1975,
had not given any contra evidence or material to show that the
encroachments are made subsequently. Considering the fact that the
construction was made by the defendant in the year 1975, then the entire
claim made by the plaintiff seeking for declaration and also recovery of
possession is definitely barred by the limitation, as it is beyond the
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prescribed period.
17.The Advocate Commissioner's report and plan marked as Ex-C1
and Ex-C2 cannot be of much use to the plaintiff, in view of the categorical
admission made by her in respect of the very plaint 'B' schedule property.
Further, from the documents, it has been established that the plaintiff had
been conveyed an excess extent by her vendor in Ex-A2 than what was
purchased by her and further, it has been established that as on date, the
plaintiff is also having excess lands in possession more than what was
conveyed to the plaintiff in Ex-A2 and hence, the claim made by the
plaintiff that plaint 'B' schedule property also forms part of plaint 'A'
schedule property is without any basis and cannot be sustained.
18.The lower appellate Court, which is a final fact finding Court, had
analysed the documents and evidences and also the admission made by the
plaintiff in proper perspective and had rightly reversed the decree of the trial
Court, which is based on evidences and material available on record.
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19.In such circumstances, this Court is not able to find any illegality
or perversity in the finding of fact arrived at by the appellate Court. In view
of the above findings, the substantial question of law framed is answered
against the appellant and in favour of the respondent. In view of the above,
the Second Appeal is dismissed. However, there shall be no order as to
costs. Consequently, connected miscellaneous petition is closed.
09.06.2025
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
cmr
To
1.The Subordinate Judge, Devakottai.
2.The District Munsif cum Judicial Magistrate, Karaikudi.
The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ARUL MURUGAN, J.
cmr
Judgment made in
09.06.2025
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