Madras High Court
Vallikannan vs Raghu on 31 October, 2025
S.A.No.1042 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 18.08.2025
Pronounced on 31.10.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN
THILAKAVADI
S.A.No.1042 of 2019
Vallikannan ...Appellant
Vs.
Raghu ...Respondent
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
judgment and decree dated 22.08.2019 passed in A.S. No.1 of 2018, on
the file of the Subordinate Judge, Gudiyattam, Vellore District, reversing
the Judgment and decree dated 07.11.2017 passed in O.S.No.80 of 2013,
on the file of the District Munsif, Gudiyattam, Vellore District.
For Appellant : Mr. N. Suresh
for Ms. A.B. Reehana Begum
For Respondent : Mr. K.A. Ravindran
Page 1 of 15
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S.A.No.1042 of 2019
JUDGMENT
In this Second Appeal, challenge is made to the judgment and
decree dated 22.08.2019 passed in A.S. No.1 of 2018, on the file of the
Subordinate Judge, Gudiyattam, Vellore District, reversing the Judgment
and decree dated 07.11.2017 passed in O.S.No.80 of 2013, on the file of
the District Munsif, Gudiyattam, Vellore District.
2. The appellant is the plaintiff in O.S. No.80 of 2013 on the file of
the District Munsif Court, Gudiyattam, Vellore District. He filed the said
suit for the relief of declaring his title over the suit 'B' schedule property,
for mandatory injunction directing the defendant, his men, servants to
deliver vacant possession of the 'B' schedule property after removing the
superstructure put up in the schedule mentioned property in default, order
to deliver the possession of the suit property through the court and for
cost of the suit.
3. For the sake of convenience the parties are referred to as per
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their ranking in the trial court.
4. The case of the plaintiff is that the plaintiff is the owner
of the land to an extent of 73 cents in S.No.35/2 with
specific boundaries by way of an oral partition took place
between him and his brother Krishnamoorthi. Originally the
property comprising S.No.35/2 with an extent of 1.47
acre was purchased by the plaintiff and his brother under
a sale deed dated 22.4.1968 and since then they were
in possession and enjoyment of the same till a partition
was effected between them. Thereafter the plaintiff is in
possession and enjoyment of the 'A' schedule property.
The defendant who is a third party to the 'A" schedule
property had illegally trespassed into a portion of the 'A'
schedule property which is described as 'B" schedule
property in the month of July 2012 when the plaintiff was
away from the suit property. When the plaintiff questioned
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about the same, the defendant agreed to vacate and
deliver possession of the suit property within a month but
he did not do so. so the plaintiff gave a police complaint
and they directed the plaintiff to get remedy from the
civil court. Hence the plaintiff has been constrained to file
this suit for declaration and possession of the suit
property.
5. The suit was resisted by the defendant by stating
that the property comprised an extent of acres 1.46
situate in S.No.35/2 of Chithathoor village is the
ancestral property of the defendant and it was succeeded
by his grandfather Kali and he died intestate in or about
1955 leaving behind his two sons namely the plaintiff and
Krishnamorrthy and daughter Dhanalakshmi born to his 2nd
wife Nagammal and one son Natarajan born to his 3rd wife
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Kullammal to succeed his estate. The said Natarajan died
on 5.6.1997 leaving behind his two sons namely this
defendant(Ragu) and his brother Manivannan to succeed
his estate. Hence the plaintiff, his brother Krishnamoorthy
are entitled to 2/3rd share in the suit property and the
defendant's father and after his death the defendant and
his brother Manivannan are entitled to the remaining
1/3rd share and accordingly enjoying separately in
vaikkals for convenient enjoyment without any partition till
date. Based upon the common enjoyment,the Government
also granted patta pass book to all the above sharers for
the said property. Krishnamoorthy died intestate leaving
behind his wife Kanthammal, 2 sons namely Ganesan
and Kumar to succeed his common 1/3 share in the suit
property. The plaintiff was working in Police Department
and permanently residing at Madras. He never used to
come to the village and his portion is being kept vacant
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for several years. There is no necessity for the defendant
to trespass in to the plaintiff's property. The defendant's
father Natarajan and after his death, the defendant and
his brother Manivannan are in common and joint
enjoyment of the above said property. The plaintiff
seemed to have created several documents to defeat the
rights of the defendant's common 1/3 share in the said
property which is illegal and not binding upon the
defendant. There is no cause of action for the suit. The
defendant has filed a suit for partition relating to the said
property against the plaintiff and others on the file of this
court and the same is pending. So the relief as claimed
is not maintainable. The valuation of the suit and court
fee paid is not correct. The suit is not bonafide one.
Hence prayed to dismissal of the suit with cost.
6. The trial court decreed the suit in favour of the plaintiff.
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Aggrieved over the same, the defendant preferred the appeal suit in A.S.
No.1/2018 before the Sub Court, Gudiyatham, Vellore District. The first
appellate Court allowed the appeal against which the present second
appeal is preferred by the plaintiff.
7. The second appeal has been admitted on the following
substantial question of law:
"In the absence of either any oral or documentary evidence
in proof of the marriage between Sippoy Kali and
Kullammal and a son Natarajan was born out of the
wedlock and nor any proof of revenue documents to clothe
title with Natarajan, still is the learned Subordinate judge
right in dismissing the suit?"?
8. The plaintiff case is that, the 'A' schedule property is in
possession and enjoyment of the plaintiff and that the defendant illegally
trespassed into a portion of the 'A' schedule property which is described
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as 'B' schedule property in the month of July 2012, when the plaintiff was
away from the suit property. Hence, the plaintiff was constrained to file
the present suit for declaration of title and recovery of possession of the
suit property. The learned counsel appearing for the appellant/plaintiff
would submit that the original owner Sippoy Kali executed a settlement
deed under Ex.A7 in favour of his wife Boopathy Ammal. The plaintiff,
his brother Krishnamoorthy and sister Danalakshmi as heirs of Boopathy
Ammal sold the suit property to one Irusammal with a right of re-
conveyance within 5 years. Having retained the right of re conveyance
sold the suit property to one Nagammal and the said Nagammal sold the
property to Krishnamoorthy and plaintiff by way of registered sale deed
dated 23.04.1968. Further, the said Krishnamoorthy and the plaintiff
leased out the entire property to one Nataraj Chetti for a period of 7 years.
The plaintiff filed a suit for partition against the heirs of Krishnamoorthy
in O.S. No.249/1999 on the file of the Sub Court, Gudiyatham, Vellore
District, which was dismissed on the ground that, a prior oral partition
took place in the year 1975 itself in two equal halves and one half is
already with the plaintiff. It is settled law that onus will be always on the
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person who pleading a fact and in this case, it is on the defendant to prove
that the said Sippoy Kali had three wives and the name of the third wife is
Kullammal and Natarajan was born out of the said wed lock. No
independent witness was examined to establish the same. While so, the
lower appellate court erroneously shifted the onus on the plaintiff. Neither
the marriage certificate nor birth certificate was produced on the side of
the defendant to establish the factum of marriage between the said
Kullammal and Sippoy Kali and the father of the defendant Nataraj was
born to them. Ex.B1 Encumbrance Certificate also indicate that only the
plaintiff and his brother Krishnamoorthy have right over the suit property.
The issuance of patta in favour of the defendant will not clothe any title.
Hence prayed for setting aside the judgment and decree passed by the
first appellate Court in A.S. No.1 of 2018.
9. On the other hand, the contention of the learned counsel for the
respondent/defendant is that, the property comprised an extent of 1.46
acres situate in S.No.35/2 of Chithathoor Village is an ancestral property
of the defendant and it was succeeded by his grandfather Kali who
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possessed and enjoyed the same till his demise in or about 1995 leaving
behind his two sons namely the plaintiff and Krishnamoorthy and
daughter Danalakshmi born to his second wife Nagammal and one son
Natarajan born to his third wife Kullammal to succeed his estate. The said
Natarajan died on 05.06.1997 leaving behind his two sons namely the
defendant Raghu and his brother Manivannan to succeed his estate.
Hence, the plaintiff and his brother Krishnamoorthy are entitled to 2/3
share in the suit property and the defendants' father and after his demise,
the defendant and his brother Manivannan are entitled to the remaining
1/3 share and accordingly, enjoying separately in Vaikkas for convenient
enjoyment without any partition till date. Based upon the common
enjoyment, the Government has granted patta passbook to all the above
sharers for the said property. The said Krishnamoorthy died intestate
leaving behind his wife Kanthammal two sons namely Ganesan and
Kumar to succeed his common 1/3 share in the suit property. The plaintiff
was working in police department and was permanently residing at
Madras. He never used to come to the suit village and his portion was
kept vacant for several years. There is no necessity for the defendant to
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trespass into the plaintiff's property. The defendant's father Natarajan and
after his death, the defendant and his brother Manivannan are in common
enjoyment of the said property. The plaintiff is attempting to defeat the
right of the defendant 1/3 common share in the suit property. The
defendant has also filed a suit for partition in respect of the suit property
against the plaintiff and others which is still pending. The first appellate
court rightly dismissed the suit filed by the plaintiff which calls for no
interference by this Court.
10. Heard on both sides. Records perused.
11. The above suit is filed for the relief of declaration of title to the
'B' schedule property and for mandatory injunction directing the
defendant to remove the superstructure in the suit 'B' schedule property
and to hand over vacant possession to the plaintiff. The unsuccessful
plaintiff before the first appellate court has filed the present second
appeal.
12. The specific contention of the plaintiff is that one Kullammal is
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not the second wife of Sepoy Kali and the father of the defendant namely
Natarajan was not born to them and that the defendant trespassed into 'B'
schedule property in the month of July 2012 and put up a thatched house
when the plaintiff was away from the suit property. Hence he was
constrained to file the present suit. The suit was filed in the year 2013.
13. Per contra, the defendant has produced Ex.B2 and Ex.B3 death
certificates of Kullammal and Natarajan in which the husband name of
Kullammal and father name of Natarajan is mentioned as Sepoy Kali.
14. No doubt, birth and death certificates are not sufficient on their
own to establish legal heir ship. It is issued only on the informations
given by the applicant. The same cannot be construed to be a conclusive
proof for establishing the relationship between the parties. It requires
additional circumstances, that proves the relationship between the parties.
The defendant has produced Ex.B4 and Ex.B5 pattas jointly issued in the
Natarajan, father of the defendant in respect of the suit property.
Moreover, the defendant and his brother have filed a partition suit in O.S.
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No.235/2013 against the plaintiff in which an ex parte decree was passed
on 04.07.2013 allotting 1/3 share to the defendant and his brother in the
suit property. Even it is an ex parte decree, the same is binding on the
plaintiff unless the same is set aside. Admittedly, the defendant is in
possession of the suit property and the revenue records stands in the
name of his father. If really the defendant is a stranger, the plaintiff
would have taken necessary steps to remove the name of the defendant
from the revenue records. It is also not established that the defendant
trespassed into the suit property in July 2012. The suit is filed only in
the year 2013. Moreover, the factum of marriage and proof of paternity
are all question of facts. The first appellate court having analysed the
above facts in a proper perspective, rightly concluded that the plaintiff is
not entitled for the relief claimed. No perversity or infirmity found in the
findings of the first appellate court, which warrants any interference by
this Court. Hence, the substantial question of law is answered against
the appellant.
15. In the result,
i. The Second Appeal is dismissed. No costs.
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ii. The judgment and decree dated 22.08.2019 passed in A.S. No.1
of 2018, on the file of the Subordinate Judge, Gudiyattam, Vellore
District, is upheld.
31.10.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Subordinate Judge, Gudiyattam, Vellore District
2. The District Munsif, Gudiyattam, Vellore District.
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J
bga
Pre delivery Judgment in
31.10.2025
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