Madras High Court
Ayyakkannu (Died) : 1St vs B.Pappu (Died) on 7 March, 2025
SA(MD)No.231 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 07/03/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.231 of 2005
1.Ayyakkannu (Died) : 1st Appellant/R1/D1
2.A.Alagan
3.A.Mayan
4.A.Ponnammal
5.V.Chinnammal
6.C.Muthupillai : Appellants 2 to 6/
LR.s of the deceased
appellant
(A2 to A6 are brought on record as
LR.s of the deceased sole appellant,
vide Court order, dated 31/08/2021
made in CMP(MD)No.2560, 2561 and
2563 of 2021 in SA(MD)No.231 of 2005)
Vs.
1.B.Pappu (Died)
2.Chinnasamy
3.Rajammal
4.M.Rajendran
5.A.Ramu
(5th respondent brought on record
as LR of the deceased sole appellant
vide court order, dated 41/08/2021
made in CMP(MD)No.2560, 2561, 2563
of 2021 in SA(MD)No.231 of 2005)
6.Tamilselvi
7.Sindhu
8.Kesavan
9.Viswa
10.Chitra
11.Anbalagan : Respondents 6 to 11
(Respondents 6 to 11 are brought
on record as LR.s of the deceased
1st respondent vide court order,
dated 01/10/2021 made in CMP(MD)
No.3337 and 3341 of 2021 in
SA(MD)No.231 of 2005)
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1/16
SA(MD)No.231 of 2005
(Respondents 8 and 9 are declared as
major and the guardian of their sister
7th respondent Sindhu is discharged,
vide court order, dated 22.10.2014 made
in CMP(MD)No.12615 and 12691 of 2024
in SA(MD)No.231 of 2005 respectively)
PRAYER: Second Appeal is filed under Section 100 of
the Civil Procedure Code, against the judgment and
decree, dated 08/04/2004 in AS No.70 of 2001 on the file
of the III Additional Sub Judge, Madurai, reversing the
judgment and decree, dated 20/09/2000 in OS No.236 of
1998 on the file of the District Munsif, Madurai Taluk at
Madurai.
For Appellants : Mr.R.Janakiramulu
For 1st Respondent : Died
For R2 to R5 : Dispensed with
For R6, R7, R10
and R11 : D.Malaichamy
For R8 and R9 : No appearance
JUDGMENT
This second appeal is filed against the judgment and
decree, dated 08/04/2004 passed in AS No.70 of 2001 by
the III Additional Sub Judge, Madurai, reversing the
judgment and decree, dated 20/09/2000 passed in OS No.236
of 1998 by the District Munsif, Madurai Taluk at Madurai.
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2.The plaint averments:-
The property comprised in Survey No.130/2 measuring
about 7 acres and 56 cents originally belonged to the
joint family consisting of Mayandi Thevar and others. The
family members were enjoying the property here and there
without dividing the same by partition. The plaintiff
purchased 1 Acre 81 cents in Survey No.130/2 from the
legal heirs of Sadamaya Thevar, on 03/10/1991.
3.The defendants 2 to 6 are the legal heirs of the
Mayandi Thevar @ Vellaichamy Thevar. The second defendant
was entitled to 94 cents. The defendants 3 to 6 were
entitled to 94 cents in the total extent of 7 acres and
56 cents. The second defendant and his brother sold
64-3/4 cents to the first defendant, on 16/10/1995
covered in survey No.130/2B1. Similarly, the defendants
3 to 6 sold 40 cents in favour of the first defendant, on
29/12/1997. But in the second sale deed, survey number
was wrongly mentioned as 130/2B.
4.Sub division was effected in survey No.130/2 as
various numbers such as S.Nos.130/2A, 130/2B1, 130/2B2,
130/2B3, 130/2B4, 130/2B5, 130/2B. 130/2B6 and 120/2B. By
taking advantage of the wrong mentioning of survey number
in the sale deed, dated 29/12/1997, the first defendant
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encroached 40 cents belongs to the plaintiff. Notice was
sent on 30/07/1998. But there was no proper response.
Hence, the suit for declaration and recovery of
possession, costs.
5.The statement:- The first defendant filed written
statement stating that he purchased the property in
survey No.130/2B measuring about 40 cents through a
sale deed dated 29/12/1997 from the defendants 3 to 6
wherein the correct survey numbers and boundaries are
mentioned.
6.The defendants 2 to 6 remained ex-parte.
7.On the basis of the pleadings of both sides, the
trial court formulated the following issues:-
(1)Whether the vendors of the
plaintiff and the plaintiff has got valid
and lawful title over the suit property?
(2)Whether the 1st defendant had
encroached the suit property?
(3)Whether the plaintiff is entitled
for the relief of declaration as prayed
for?
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(4)Whether the plaintiff is entitled
to the relief of recovery of vacant
possession of suit property from the 1st
defendant?
5.To what other relief, the plaintiff
is entitled to?
8.On the side of the plaintiff, two witnesses were
examined and 19 documents marked. On the side of the
defendants, two witnesses were examined and two documents
marked. Commissioner report and plans were marked as
Exs.C1 to C4.
9.At the conclusion of the trial process, the trial
court recorded a finding that the plaintiff has not
established and proved her title over the suit property
and accordingly, dismissed the suit without any costs.
Against which, appeal was preferred by the plaintiff
before the III Additional Sub Court, Madurai, in AS No.70
of 2021. The appellate court differed from the trial
court and recorded a finding that the plaintiff has
proved the title over the suit property, accordingly,
decreed the suit as prayed for without costs.
10.Against the reversal judgment, this second appeal
is preferred by the defendants.
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11.At the time of admission, the following
substantial questions of law were framed:-
(1)Whether the lower appellate
court has committed error of law in
reversing the findings of the trial
court without considering the reasons
given by the trial court?
(2)Whether the lower appellate
court has committed illegality in
allowing the suit of the plaintiff
without any cogent findings regarding
the extent of encroachments?
(3)Whether the appeal before the
lower appellate court should have been
abated on account of death of 5th
respondent in the said appeal?
12.Heard both sides.
Substantial Question of No.3:-
13.Before we go into the substantial questions of
law 1 and 2, we will take up the 3rd substantial question
of law first.
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14.The 5th respondent before the appellate court was
one Selvam. He was the 5th defendant before the trial
court. But he remained ex-parte, even before the
appellate court, he did not appear. Now in this
circumstance, in the grounds of appeal, it has been
stated by the appellants that the 5th respondent/5th
defendant died. on 07/12/2002. The judgment of the
appellate court was rendered on 08/04/2004.
15.According to the appellants, the appeal ought to
have been dismissed as abated, since Selvam died. But, as
mentioned above, Selvam remained ex-parte before the
trial court. It appears that he received the notice from
the appellate court and thereafter, did not appear, later
died. It was not intimated to the appellate court. So,
the judgment rendered by the appellate court is not
affected. This ground is not at all available to the
appellants now and even this ground will not support or
improve the case of the appellants. So, the third
substantial question of law is answered that the appeal
judgment is not affected.
Substantial Question of law No.2:-
16.This is the main issue, of course, it is a
factual issue. Since the judgment of reversal, this
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substantial question of law was farmed. So, we will go
into the factual aspect to find out whether the plaintiff
has established her title over the suit property.
17.On both sides, written submissions have been
filed. Now the case of the plaintiff is very specific to
the point that she purchased the property with specific
four boundaries, which was originally situated in survey
No.130/2. It is admitted that an extent measuring about
7.56 Acres belongs to the joint family consisting of
Mayandi Thevar @ Vellichamy, Muthunaya Thevar, Sadaimaya
Thevar and Chinnasamy Thevar. She purchased an extent of
1.81 Acres from the legal heirs of Sadaimaya Thevar, on
03/10/1991. This sale deed cannot he disputed and in-
fact, could not be disputed by the defendants. In the
sale deed, it is specifically mentioned that the property
is situated in Survey No.130/2. The total extent is 7.56
Acres. Within specific four boundaries measuring about
1.81 Acres was sold. Original survey number was
subsequently sub-divided into various sub divisions
mentioned in the plaint. According to the plaintiff, the
disputed property, now situated is in Survey No.130/2B2.
To show that sub division was effected, for which she was
granted with patta, Ex.A2 (Adangal Extract), Ex.A3 (Kist
receipt). Ex.A4 (Adangal Extract) and relevant tax
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receipts are produced by the plaintiff. So, this shows
that the after purchase sub- division was effected and
the plaintiff was granted patta in respect of her
purchased property.
18.At this juncture, the trial has recorded a
finding that there was no proof for the partition among
the joint family members of the original Vendor; Sub-
division was not proved to be effected after notice of
the parties; As per the provisions of Tamil Nadu Survey
and Boundary Act and according to the trial court, sub-
division effected cannot be relied. This finding was
reversed by the appellate court.
19.It is not even the case of the defendants that
sub division was improperly made without any notice. In
fact, they cannot make any such contention, since the
sale deed of the plaintiff is dated 03/10/1991. The exact
date of sub-division is not available. But from the
available documents, it is seen that it was effected
around 1995 as chitta and adangal shows. But the
defendants purchased the property only in 1997. So,
probably, they cannot make any objection regarding the
sub-division for the simple reason that in the sale deed
under Ex.B1 specifically the sub-division is mentioned as
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130/2B in vernacular portion “ rh;nt vz;.130/2B ePh; br.
40 ehw;gJk;. The original survey number is also mentioned
as 130/2. Without any valid reason, the trial court has
recorded a finding that sub-division itself is not
proper.
20.So, the 1st defendant purchased the property by
mentioning the sub-division as 130/2B measuring about 40
cents. He says that he is in possession of the suit
property in pursuance of the sale deed under Ex.B1. Apart
from the suit property, he has also purchased 63-3/4
cents in survey No.130/2B1.
21.At the time of purchase, there was no survey
number as 130/2B. It was already sub- divided as
mentioned above. So, it appears that the defendants
without verifying the correct sub-division number
purchased the property and now claims right over the
property situated in Survey No.130/2B2. As mentioned
above, Survey No.130/2B2 was standing in the name of the
plaintiff.
22.A commissioner was appointed, he inspected the
suit property and filed the report, wherein he has stated
that no proper survey stones were available around the
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property. The portion marked as 'ABC' was stated to be in
possession of the defendants. The portion marked as 'D'
was stated to be under the possession of the plaintiff.
Survey number was identified as 130/2B2.
23.So, when prima facie, it is established on the
side of the plaintiff that the suit property belongs to
her by way of purchase, now it is the duty of the
defendants to prove that Ex.B1 covers the suit property.
Because there is an observation by the trial court that
it is the duty of the plaintiff to prove the title over
the property, notwithstanding the defective title of the
defendants. But this observation itself is also not
correct. It is settled principles of law that when both
parties claim title over the property on the basis of the
documents, the burden of proof pale into insignificance.
24.As mentioned above, the plaintiff has established
her title on the basis of the document in a prima facie
manner. Now against this, the defendants, except
producing Ex.B1 sale deed, no other document is
forthcoming from them.
25.Now we will go to the oral evidence of both sides
regarding this aspect of title.
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26.Leaving the evidence of PW1, PW2 who is the
Mediator between the plaintiff and the defendants would
say that the title resolve the issue at their level. But
the defendants did not agree for the compromise. He would
say that the dispute arose between the plaintiff and the
defendants, when the defendants purchased the very same
property, which was purchased by the plaintiff. Now, he
involved in a criminal case. So, we can ignore his
evidence.
27.The vendor of the defendants was examined on the
side side of the defendants as DW2. He would say that the
brothers namely Mayandi Thevar @ Vellaichamy Thevar,
Sadaimaya Thevar, Muthunaya Thevvar and Chinnasamy Thevar
divided the joint family properties orally. Each was
allotted 1.8 Acres each. They were allotted property,
which was sold to the defendant under Ex.B1. But, his
evidence does not inspire any confidence. Because, he
would say that sub-division was not made. They have not
mentioned any sub-division in the document. But, as
mentioned above, sub-divisions are mentioned.
28.One important fact was brought to the notice of
this court on the basis of the evidence of DW2. He would
admit that in the total property, his father was allotted
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1.82 Acres. That was divided between his mother who is
the third defendant (Mayakkal). The first wife was dead.
The second defendant is the son of the first wife. So,
the first wife children and the second wife children
divided 1.8 Acres equally. So DW2's mother was allotted
90.5 cents. According to him, 40 cents, out of 90.5 cents
was sold to the defendants. Remaining 40 cents was sold
to a third party. Now he is in possession of the
remaining 50 cents. That property situated on the south
eastern side. If we calculate these extents, it will come
around 130 cents, which was more than the property
allotted to their mother. So, this important aspect was
mentioned in the written argument, which appears to be an
acceptable one. So, it is clear that DW2 sold the
property, which did not belong to them. The defendants
without noticing all those things, purchased the property
which was already purchased by the plaintiff. This can be
confirmed even from the evidence of DW1. He would say
that at the time of purchase, he did not notice any patta
standing in the name of DW2. He did not collect any
encumbrance certificate. But the vendor, who had shown a
paper which contains survey number. So, this shows that
he was not careful enough while purchasing the property.
So, in all probabalities, as mentioned above, DW2 has
sold in excess against their share.
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29.But the trial court without appreciating those
things in a proper manner, went on to hold that the
plaintiff has not established her title. So, the 2nd
substantial question of law is answered that the lower
appellate court did not commit any illegality in re-
appreciating facts, since the 1st defendant himself admits
that he is in possession of the suit property. There is
no issue with regard to the extent in the occupation of
the defendants. So, the appellate court recorded a
correct findings.
Substantial question of law No.1:-
30.The appellate court has given reason for its
decision. As mentioned above, the trial court did not
appreciate the evidence on record and facts in a proper
manner. So, the first substantial question of law is
answered that the lower appellate court did not commit
error in law in reversing the finding of the trial court.
31.In the result, this second appeal fails and the
same is dismissed with costs, confirming the judgment and
decree of the appellate court.
07/03/2025
Index:Yes/No
Internet:Yes/No
er
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To,
1.The District Munsif,
Madurai Taluk.
2.The 3rd Additional Sub Judge,
Madurai.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
er
07/03/2025
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