Madras High Court
K.S.Nagaraj (Died) vs Sujatha on 12 September, 2025
S.No.353 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 18.07.2025
Pronounced on 12.09.2025
Coram:
The Honourable Mrs. Justice K.GOVINDARAJAN THILAKAVADI
Second Appeal No.353 of 2019
K.S.Nagaraj (Died)
2.Vinodha
3.Premchand
4.Vivekandand
[* Sole appellant died, A2 to A4
brought on record as legal heirs of the
deceased sole appellant vide Court
order dated 07.07.2025 made in
C.M.P.Nos.15501, 15503 & 15505 of
2025 in S.A.No.353 of 2019 (KGTJ)
.. Appellants
versus
1.Sujatha
2.Suresh
3.Dr.Sathish .. Respondents
Prayer: Second Appeal is filed under Section 100 CPC, praying to set aside
the judgment and decree dated 19.08.2011 made in A.S.No.2 of 2011 on the
1
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S.No.353 of 2019
file of Sub Court, Hosur, reversing the judgment and decree dated
30.08.2010 made in O.S.No.44 of 1997 on the file of the District Munsif
Court, Hosur.
For Appellant : Mr.K.Sukumaran
for G.M.Ananthamukar
For Respondents : Ms.V.Srimathi for R1 and R2
JUDGMENT
This Second Appeal is preferred challenging the judgment and decree
dated 19.08.2011 made in A.S.No.2 of 2011 on the file of Sub Court,
Hosur, reversing the judgment and decree dated 30.08.2010 made in
O.S.No.44 of 1997 on the file of the District Munsif Court, Hosur.
2. The plaintiff is the appellant in this second appeal. Pending second
appeal the plaintiff died and his legal heirs were impleaded as appellants A2
to A4.
3. For the sake of clarity and brevity parties shall be referred in
accordance with their litigative status in the plaint.
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4. According to the plaintiff in O.S.No.44 of 1997 he states that the
land in SF.No. 546/3, 0.74 cents originally belonged to one Venkatachari.
This land was subsequently purchased by Kesava Ramanujam and the
plaintiff. Thereafter, they divided the land equally between themselves. K.
Kesava Ramanujam constructed a house and shops on his portion, leaving
the remaining part as a backyard . The plaintiff, on his part, constructed a
shopping complex and left the remaining portion for future construction.
Subdivision has taken place and the plaintiff's portion was sub-divided as
SF.No. 546/3B and Kesava Ramanujam's portion was allotted in
S.F.No.546/3A, as per the proceedings of the Tahsildar, Hosur, in Na. Ka.
No.611/147/86-87/C3, dated 16.11.1987. In pursuance of the same, patta
was also issued to them separately. The plaintiff has put a barbed wire fence
with stone pillars here and there, immediately after the sub-division. Kesava
Ramanujam died about a year ago, leaving behind the defendants as his
legal heirs. The defendants in order to encroach upon the land adjoining
their property, attempted to trespass into the suit property, with the support
of rowdy elements. The plaintiff came to know that the defendants have
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obtained fresh Patta to excessive extent, and on that basis, began to deny the
plaintiff’s title. The defendants have influenced the revenue officials and
obtained patta afresh. The plaintiff has not been issued with any notice for
inquiry from the revenue officials. The issue of patta to the defendants is
illegal, and behind the back of the plaintiff. The plaintiff has preferred an
appeal as against the said orders. Without any manner of right, title or
possession, the defendants with the help of rowdy elements gathered on
28.02.1997, and dug pits in the plaintiff's land and when the plaintiff
protested, they attempted to assault him and removed the barbed wire fence.
4.1.The defendants have absolutely no right, title or interest over the
suit property, and they are bound to surrender possession of the same to the
plaintiff. The plaintiff is entitled for mandatory injunction regarding the
unlawful constructions through the process of the court. The plaintiff is
entitled for future mesne profits, which has to be determined by way of a
separate petition under Order 20 Rule 12 CPC. Hence, the suit.
5. The defendants together resisted the claim of the plaintiff that there
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is no barbed wire fence as alleged. The dividing wall between the two
portions is a permanent one, and is a regular wall put up with pillars at
regular intervals and white washed. It is true that 74 cents was purchased
from Venkatachari of Hosur, in 1974. Wholesale price was paid by the
husband of the 1st defendant. The plaintiff is the son of KS Moorthy, the
proprietor of the Medical store Moorthy Medicals. There was no other
druggist except them in Hosur at that time. Kesava Ramanujam purchased
the property in order to construct a Hospital or a nursing home in Hosur. It
was away from the Hosur town. The plaintiff's father wanted to open a
medical shop, next to the nursing. The entire consideration was paid only
by the doctor. He was in good terms with the doctor, and so the doctor
agreed for the same also. Till the death of Kesava Ramanujam on
02.08.1995, there was no claim on the part of the plaintiff or his father. The
father of the plaintiff had influence on the Doctor, whereby he entrusted the
task of concluding the sale talk, drafting the sale deed, payment of the
money, and the registration to him. The doctor had nothing to suspect till
the dispute arose. The name of the plaintiff has been surreptitiously
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introduced in the sale deed, which the doctor did not know. Long after the
registration of the sale deed, when acquisition was sought for, the father of
the defendants 2 and 3 fought out the proceedings and sought the exclusion
of the land since he had already commenced construction of the nursing
home. Neither the plaintiff nor his father took any step for the same. When
the doctor came to know of the inclusion of the name of the plaintiff in the
sale deed, he did not want the friendship to be soured, he voluntarily along
with the father of the plaintiff mutually divided the suit property and to
evidence the boundary between them, the doctor put up a pucca compound
wall running east west in or about the year 1976-77, made up of bricks and
with pillars at regular intervals to demarcate the different portions. The wall
was plastered on both sides. The defendants have put up coconut trees east
west along the compound wall, and have also dug a ditch for discharge of
waste water. The building constructed by the father of the defendant was let
on lease to the Central Excise Department, and later the doctor himself
occupied the same. The plaintiff or his father did not raise their voice for the
construction of the thick compound wall. After the death of Dr. Kesava
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Ramanujam, with some ulterior motive to grab the valuable property, the
plaintiff has demolished a portion of the compound wall, in order to destroy
the physical features after the appointment of the commissioner. The
defendants have been in enjoyment of the land north of the compound wall
for more than 20 years and even if the plaintiff had any right it has become
extinguished when the compound wall was demolished. Pending suit and a
complaint was lodged, with the police and action is pending. The shopping
complex of the plaintiff is on the south of the compound wall. The shops are
on the southern side and there is a space of about 8 or 9 feet on the north of
the shops, to serve as an approach to the space on the west of the shops. The
plaintiff is not entitled for the reliefs sought for and the suit has to be
dismissed with costs.
6. The Trial Court held that the plaintiff is entitled for the declaratory
relief and also directed the defendants to remove the alleged constructions
within the period of two months. Aggrieved by the judgement and decree
passed by the learned judge, the appeal suit in A.S.No.2 of 2011 was filed
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before the Sub Court, Hosur. The Ist Appellate Court based on the
materials on record came to the conclusion that the plaintiff failed to prove
his physical possession and enjoyment of the suit property at that time prior
to the suit. The 1st Appellate Court further held that the east west compound
wall was the boundary between the properties of the plaintiff and the
defendants and that the plaintiff is not in possession and enjoyment of any
property north of the east west compound wall at any point of time.
Therefore, the 1st Appellate Court allowed the appeal preferred by the
defendants 1 and 2. Aggrieved by this, the present second appeal is
preferred by the plaintiff.
7. Heard the respective counsel on either side, the following
substantial questions of law are formulated by this Court:
A. Is the First Appellate Court right in reversing the
findings and decision of the Trial Court without recording
proper reasons and totally ignoring evidence adduced in
the case ?
B. Is the First Appellate Court right in not
considering Section 45 of The Transfer of Property Act,
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1882, which contemplates that in the case of joint transfer
(joint purchase in this case), in the absence of evidence as
to the interests in the fund to which they (transferees)
respectively advanced, such persons shall be presumed to
be equally interested in the Property and in totally
ignoring the established fact that vide Sale Deed dated
9.12.1974 (Ex.A.1) Sri.Kesava Ramanujam (husband of
First Respondent herein and father of Respondents 2 and 3
herein) and the Appellant herein jointly purchased 74 cents
of land in Survey No.546/3B in Hosur Town?
C. Is the First Appellate Court right in ignoring the
settled position of Law that under Section 101 of The
Evidence Act, burden of proving is on the Defendants lies
heavily on them and in ignoring the fact that the
Defendants have not discharged their burden?''
8. The learned counsel appearing for the appellant/plaintiff submits
that the land in SF 546/3 measuring 0.74 cents originally belongs to one
Venkatachari, and the same was purchased jointly by the plaintiff
K.S.Nagaraj and Kesava Ramanujam under a registered sale deed dated
09.12.1974. Subsequently, they divided the land equally and each were
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entitled to 0.37 cents of land and were in possession and enjoyment of the
same. The said Kesava Ramanujam has built a residential house in his
portion of land and left the remaining portion as backyard. The plaintiff has
put up a shopping complex in his portion and had left the remaining portion
for future construction. Thereafter, the portion of land owned by plaintiff, a
new sub division number was given as S.No.546/3B for an extent 0.15.0
hectares and the land owned by Kesava Ramanujam was sub divided as
S.No.546 / 3A to an extent of 0.15.0 hectares. In pursuance of the said sub
division patta number 1248 was issued in favour of the plaintiff and the
plaintiff was in possession and enjoyment of the land in S.No.546/3B. It is
further submitted that, to the south and west of the land in S.No.546/3B is
the land of the plaintiff. The said Kesava Ramanujam died leaving behind
the defendants as his legal heirs. The defendants having obtained patta for
larger extent attempted to trespass into the lands of the plaintiff. The
defendants are claiming title over the land of the plaintiff on the basis of
new sub division and patta. The defendants have obtained patta by making
false representation and the plaintiff has preferred an appeal against the
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orders of the revenue authorities. Pending suit the defendants constructed a
wall in the disputed area. The learned counsel further submits that the 1st
Appellate Court failed to consider Ex.A1 sale deed dated 09.12.1974
through which the 1st respondent husband Kesava Ramanajum and the
appellant/plaintiff jointly purchased 0.74 cents of land in S.No.546/3B.
Under Section 45 of Transfer of Property Act, 1882, in the case of joint
purchase in the absence of evidence as to the interest in the fund to which
the transferees respectively advanced, such persons shall be presumed to be
equally interested in the property. The 1st appellate Court failed to consider
the joint application Ex.A4 submitted by the said Kesava Ramanujam and
appellant/plaintiff for issuance of individual patta in their names after
subdividing 0.74 cents into two halves. The above application proves that
the said Kesava Ramanujam and the appellant/plaintiff were owning half
share each in the total extent of 0.74 cents and that they both equally
divided and each were entitled to 0.37 cents. The 1st appellate Court failed
to consider that the appellant/plaintiff was in possession and enjoyment of
his 0.37 cents of land until the respondents/defendants encroached over it
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pending suit. The learned counsel further submits that the 1st appellate Court
failed to consider the fact that the respondents/defendants have not proved
that they are entitled to more than 0.37 cents in S.No.556/3A. He would
further submit that the defendants/respondents failed to prove that their
predecessor in interest namely Kesava Ramanujam alone paid the entire sale
consideration for purchasing 0.74 cents of land and till 1976, the said
Kesava Ramanujam was not aware that the plaintiff is joint purchaser. The
defendants also failed to prove that when Kesava Ramanujam came to know
about the joint purchase, the above 0.74 cents was divided in such a way
that Kesava Ramanujam got allotted larger extent, that a compound wall
was constructed in the year 1976-97 itself between the properties and that
the defendants have perfected their title in respect of the alleged larger
extent, by adverse possession as contended by the defendants/respondents.
As per Section 101 of the Indian Evidence Act, 1872, the defendants are
bound to prove the above contentions. Moreover, in the absence of any
pleadings as to how the said Kesava Ramanujam was given more than 50%
of land out of 0.74 cents. The 1st Appellate Court ought not to have
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considered the contentions raised by the defendants. The learned counsel
would further submit that till the death of Kesava Ramanujam there was no
dispute among himself and the plaintiff. The 1st Appellate Court erred in
concluding that the wall shown in Red Colour in Ex.C2 Advocate
Commissioner's plane is old wall and the same was demolished and a new
wall was constructed without any basis for arriving at such a conclusion. In
fact, the said wall was newly constructed by the respondents/defendants
pending suit after encroaching upon the plaintiff's land. The plaintiff has got
absolute title over the suit property and he was exclusively in possession of
the same until dispossessed by the defendants.
9.Per contra, the learned counsel for the defendants/respondents
submit that the dividing wall between the two properties is the permanent
one and moreover, the Commissioner's report and plan marked as Ex.C.1
and C2 reveals the existence of the old wall. There is no evidence on the
part of the plaintiff that he was in possession of the disputed property at any
point of time prior to the suit. She would further submit that the entire sale
consideration was paid by the said Kesava Ramanujam. The name of the
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plaintiff was surreptitiously introduced in the sale deed which the said
Kesava Ramanujam, father of the defendants did not know at that time.
Even at the time of acquisition process, neither the father of the plaintiff nor
the plaintiff raised any claim. Thereafter, the father of the defendants 2 and
3 mutually divided the property and to evidence the boundary between them
put up a pucca compound wall running east to west between the year 1976-
77. Only after the death of the said Kesava Ramanujam with ulterior motive
to grab the property the plaintiff has demolished a portion of the compound
wall in the east west direction on the eastern side. The defendants have
perfected title over the disputed property since the compound wall is in
existence for more than 20 years. The learned counsel further submits that
the description of the suit property given in the plaint is not sufficient to
identify the same. Order 7 Rule 3 CPC postulates that where the subject
matter of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it. No effective decree can
be passed in respect of suit properties where the description of which as
given in the plaint is not sufficient for its identification. Hence, the 1st
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Appellate Court has rightly allowed the appeal suit setting aside the
judgement and decree passed by the trial Court. To support her contention,
she has relied upon the judgment reported in
1.AIR 2017 (NOC) 229 (ORI.)
2.2015 SCC Online P & H 16551
10.Heard on both sides, records perused.
11.The undisputed facts are that,
a.The land in S.F.No.546/3 measuring 0.74 cents originally belongs to
one Venkatachari.
b.The sale deed marked as Ex.A1 jointly stands in the name of
plantiff's father and Kesava Ramanujam.
c.The portion of land owned by Kesava Ramanujam was subdivided
as S.F.No.546/3A and the portion of land owned by the plaintiff was
subdivided as S.F.No.546/3B.
12.The case of the plaintiff is that the said property measuring 0.74
cents was jointly purchased by his father and Kesava Ramanujam and after
division each were entitled to 0.37 cents of land.
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13.On the other hand, the contention of the defendants is that the
entire sale consideration was paid by Kesava Ramanujam and the plaintiff
surreptitiously included his name in the sale deed taking advantage of his
close association with Kesava Ramanujam. When the said Kesava
Ramanujam came to know about this, he voluntarily divided the suit
property and to evidence the boundary between them, he put up a pucca
compound wall running east west in or about the year 1976-77 to demarcate
the properties. The defendants have planted coconut trees along the
compound wall and also dug a ditch for discharge of drainage water.
Neither the plaintiff nor his father raised any objection for the construction
of the compound wall. Only after the death of the said Kesava Ramanujam
the plaintiff in order to grab the property of the defendants demolished a
portion of compound wall and filed the above vexatious suit.
14.On perusal of the Commissioner's report, it is seen that a damaged
wall was found running east to west at the time of his inspection. He would
further states that on the eastern side approximately 20 feet of the wall
found to be damaged. But nothing is stated in the report about the existence
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of old wall.
15.According to the plaintiff, after the demise of his father, he is in
possession and enjoyment of the land in S.No.546/3B to an extent of 0.15.0
by putting up a shopping complex and leaving a portion of land for future
construction. While so, the defendants having obtained patta for larger
extent trying to trespass into the lands of the plaintiff. The defendants are
claiming title over the land of the plaintiff on the basis of new sub division
and patta which was obtained by them by making false representation. The
plaintiff has also preferred an appeal and against the orders of the revenue
authorities. The defendants are now started putting up construction in the
lands of the plaintiff. On the side of the plaintiff, it is argued that Section 45
of Transfer of Property Act, 1882, in the case of joint purchase in the
absence of evidence as to the interest in the fund to which the transfer is
respectively advanced, such persons shall be presumed to be equally
interested in the property. Section 45 of the Transfer of Property Act, 1882
runs as follows:
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''45. Joint transfer for consideration. Where immovable
property is transferred for consideration to two or more
persons and such consideration is paid out of a fund
belonging to them in common, they are, in the absence of
a contract to the contrary, respectively entitled to
interests in such property identical, as nearly as may be,
with the interests to which they were respectively entitled
in the fund; and, where such consideration is paid out of
separate funds belonging to them respectively, they are,
in the absence of a contract to the contrary, respectively
entitled to interests in such property in proportion to the
shares of the consideration which they respectively
advanced.
In the absence of evidence as to the interests in the fund
to which they were respectively entitled, or as to the
shares which they respectively advanced, such persons
shall be presumed to be equally interested in the
property.''
16.In the present case, though the defendants contend that the entire
sale consideration was paid by Kesava Ramanujam, the same was not
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established by them. Therefore, as contemplated under Section 45 of the
Transfer of Property Act, 1882, in the absence of evidence as to the interest
as to the shares which the said Kesava Ramanujam and Nagaraj respectively
advanced, they shall be presumed to be equally interested in the property.
Moreover, Ex.A4 is an application signed by Kesava Ramanujam and the
plaintiff, for issuance of individual pattas in their respective names after sub
dividing 74 cents into two halves. The above document proves that the said
case Kesava Ramanujam and the plaintiff is owning half share each in the
total 74 cents and that they have divided the said property into two halves
i.e., 0.37 cents each. It is the specific case of the plaintiff that during
pendency of the suit the defendants have encroached upon his property and
constructed a wall. Whereas, the contention of the defendants is that the said
wall is an old construction from the year 1976-77 put up by Kesava
Ramanujam and that the dividing wall between the two properties is the
permanent one. The further case of the defendants is that the father of the
plaintiff included plaintiff name fraudulently in Ex.A.1 sale deed and when
the same came to the knowledge of Kesava Ramanujam, with good
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intention to have a smooth relationship with the father of the plaintiff
mutually divided the property and put up pucca compound wall running east
to west in the year 1976-77 itself. The defendants have planted coconut
trees along the wall in the east west direction on their side dug a ditch for
discharging drainage water. Neither the plaintiff nor his father raised any
objections at the time of constructing the said wall. Only after the death of
Kesava Ramanujam the plaintiff with ulterior motive trying to grab the
property belonging to the defendants. Further, the case of the defendants is
that the compound wall was intact till the portion was demolished by the
plaintiff on 28.02.1997, 02.08.1997 and 08.09.1997 for which police
complaints were given against the plaintiff. Hence, it is submitted that the
division of property has taken place 13 years ago before filing of the suit
and therefore, the defendants have perfected title over the disputed property.
Though, it is contended on the side of the defendants that at the time of
dividing the property the said Kesava Ramanujam had taken larger extent
for which absolutely there is nothing on record to establish the same. When
the properties were divided between the said Kesava Ramanujam and the
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plaintiff and the same was subdivided and separated patta was issued in
their favour. It is not explained by the defendants why Kesava Ramanjuam
took larger extent. Moreover, the Advocate Commissioner in his report and
plan has only stated upon the existence of a damaged wall running east to
west but no steps were taken by the defendants to establish it is old wall.
According to the plaintiff, the said wall was newly constructed by the
defendants during pending of suit. Whereas, it is the contention of the
defendants that the old wall was constructed in the year 1976-77. While so,
the defendants ought to have taken steps to obtain expert opinion with
regard to the age of the wall. Since no steps were taken on the side of the
defendants it cannot be construed that there was an old wall constructed in
the year 1976-77 and the same was damaged by the plaintiff. Moreover,
Ex.A3 patta was issued in favour of the plaintiffs in S.No.546/3B for an
extent of 0.15.0 hectare. Under Ex.A4 a joint application was submitted by
the said Kesava Ramanujam and the plaintiff's father for sub dividing the
properties in S.No.546/3 for an extent of 0.74 cents purchased under Ex.A1
sale deed. In the above document, plaintiff Nagaraj and Kesava Ramanujam
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have jointly signed. From the above documents, it is understood that the
properties were equally owned by the said Kesava Ramanujam and by the
plaintiff. The defendants failed to establish that they were entitled for more
than 37 cents in S.No.546/3B and that they are enjoying the larger extent in
excess of 37 cents. Furthermore, the defendants failed to prove that their
predecessor in interest Kesava Ramanujam alone paid the entire sale
consideration for purchasing 74 cents of land under Ex.A1 sale deed and
that the said Kesava Ramanujam was not aware that the plaintiff is joint
purchaser in the sale deed and that after coming to know the said Kesava
Ramanujam and the plaintiff divided the said 74 cents in such a way the
Kesava Ramanujam took larger extent and a compound wall was
constructed in the year 1976-77 itself and the defendants have perfected title
in respect of the said larger extent by adverse possession. Moreover, it is not
explained on the side of the defendants why more extent was taken by
Kesava Ramanujam when the sale deed stood in the name of Kesava
Ramanujam and plaintiff's father. If really, the plaintiff's father fraudulently
included his name in the sale deed and admittedly, when the sale deed was
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in possession of Kesava Ramanujam, he had not taken any steps against the
plaintiff. Though, the wall is shown as red colour in Ex.C2 Commissioner's
report and the same cannot be presumed to be old unless the same was
examined by an expert. Moreover, the defendants failed to establish that
there was an old wall and after demolishing the same the new wall was
constructed, when particularly it is the case of the plaintiff that the wall was
newly constructed by the defendants during pendency of the suit. When the
plaintiff has established his title under Ex.A1 that he is entitled for the right
over the suit property, the 1st Appellate Court ought not to have rendered a
findings that there is no evidence on the part of the plaintiff that he has got
absolute title over the suit property. Since the defendants failed to establish
that the description of the property given in the plaint is incorrect, the
judgements relied on the side of the defendants is not applicable. Hence, all
the substantial questions of law formulated by this Court are answered in
favour of the appellant.
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17.In the result, the second appeal stands allowed. No costs.
i) The judgment and decree dated 19.08.2011 made in A.S.No.2 of
2011 on the file of Sub Court, Hosur, is set aside.
ii) The judgment and decree dated 30.08.2010 made in O.S.No.44 of
1997 on the file of the District Munsif Court, Hosur is confirmed.
12.09.2025
vsn
Index: Yes/No
Speaking order / Non-speaking order
To
1. The Subordinate Judge of Mettupalayam
2.The Distrit Munsif Cum Judicial Magistrate, Mettupalayam.
3.The Section Officer, VR Section, High Court, Madras
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K.GOVINDARAJAN THILAKAVADI,J.
vsn
Pre-delivery judgment made in
12.09.2025
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