High Court · 2020

IN THE HIGH COURT OF JUDICATURE AT MADRASReserved on : 17.02.2020 Date of Verdict : 02.06.2020 CORAMTHE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYANS.A.No.544 of 2000 andCMP.No.4682 of 20001.Lakshmi Ammal2.Gopal Mudaliar3.Ramamoorthy4.Dhanasundari5.Jayanthi6.Easwari ...Appellants/RespondentsVs.S.Bakthavatsalu Naidu...Respondent/PlaintiffPrayer :- This Second Appeal is filed under Section 100 ofCivil Procedure Code against the judgment and decree dated14.10.1999, in A.S.No.47 of 1999 on the file of PrincipalDistrict Judge, Chengalpattu, reversing the decree andjudgment dated 30.03.1999 in O.S.No.126 of 1985 on the file ofthe District Munsif Court, Chengalpattu.For Appellants: Ms.C.R.RukmaniFor Respondent: Mr.M.GanesanJUDGMENTThis second appeal is directed as against thejudgment and decree dated 14.10.1999, in A.S.No.47 of 1999 onthe file of Principal District Judge, Chengalpattu, reversingthe decree and judgment dated 30.03.1999 in O.S.No.126 of 1985on the file of the District Munsif Court, Chengalpattu.2.For the sake of convenience, the parties arereferred to as per their rankings in the trial Court. 3.The case of the plaintiff in brief is as follows :-3.1.The suit is filed for declaration and injunction.The suit property originally belonged to one, Savithiri Ammal, https://hcservices.ecourts.gov.in/hcservices/ who had purchased the same from Venkatathri by the registeredsale deed dated 24.04.1965, who in turn sold the same to theplaintiff under the registered sale deed dated 29.07.1972.Thus, the plaintiff has become absolute owner of the suitproperty. In addition to his title, his predecessors had beenin possession and enjoyment of the suit property and as suchhe also perfected title to the suit property by adversepossession and prescription. The first defendant is the wifeof the second defendant and mother in law of the thirddefendant. The first defendant owned her property adjacent tothe “B” schedule property. While being so, the defendantstrespassed into “B” schedule property and also raised cropsover there. Though the plaintiff protested the same, thedefendants promised to hand over the vacant possession afterharvesting the crops. Even then, they failed to hand over thepossession of the “B” schedule property. Hence, the suit.4.Resisting the plaintiff's case, the defendants 1 and2 filed written statement and stated that the propertyadmeasuring 65 feet east west and 387 feet north south wasoriginally owned by one, Thangathammal and NamasivayaMudaliar, who sold by the registered sale deed dated11.12.2019 in favour of one, Manicka Mudaliar, who is noneother than the father of the second defendant. Among thefamily members by the partition, the said Manicka Mudaliar andhis three sons were allotted each an extent of 65 feet east towest and 129 feet north to south. The second defendant wasallotted southern side of the plot and his younger brotherVenkatathri was allotted northern plot. The deceased youngerbrother Narayanasamy was allotted middle portion between histwo brothers. By virtue of partition, three were enjoyingtheir respective shares. To demark their respective shares,they formed ridges and also fixed boundary stones. Theplaintiff has purchased the share of the Venkatathri and putup a compound wall. In the said plot, he also constructedrice mill along with tubs, well and drying yard. Therefore,he purchased the property only admeasuring 65 x 129 feet alonefrom Venkatathri. Now the plaintiff has come with the falsecase and claiming the property admeasuring 81 x 145 feetwithout any basis. 4.1Further stated that the first defendant haspurchased the site admeasuring 1.12 acres in survey No.330/3adjacent to the plaintiff's compound wall by the registeredsale deed dated 19.03.1973 from one, Swaminatha Achari andothers. Adjacent to the property of the plaintiff on thesouth one, Arumugha Maistry owned property admeasuring 65 x 75feet and he also put up life fence on the western side of theproperty. The first defendant also purchased another plotmeasuring 65 feet east west x 55 feet north to south out ofthe extent of 65 feet x 129 feet from the deceased brotherNarayanasamy Mudaliar. The remaining share admeasuring 65 x129 feet is still owned by the second defendant. Thus, thefirst defendant is in possession and enjoyment of one acre 12 https://hcservices.ecourts.gov.in/hcservices/ cents and 65 x 55 east to west, north to south from the dateof respective purchase. He is cultivating by raising paddycrops, chilly and ragi. While being so, they also have put upa shed for motor pumpset and constructed tubs for feedingtheir cattle in a portion of grama natham side abutting theirproperty on the south, which is used as pathway. There is achannel which irrigates the lands of the defendants.Therefore, the plaintiff neither at the time of purchase norat the time of construction has raised any objection for thealleged shortage described as “B” schedule property.Therefore, the plaintiff is not at all entitled for any reliefas prayed for dismissal of the suit. 5.In support of the plaintiff's case, P.W.1 wasexamined and five documents were marked as Ex.A.1 to Ex.A.5.On the side of the defendants, D.W.1 and D.W.2 were examinedand Ex.B.1 to Ex.B.7 were marked. Commissioner's report andplan were marked as Ex.C.1 and Ex.C.2. On considering the oraland documentary evidences adduced by the respective partiesand the submission made by the learned counsel, the trialCourt dismissed the suit. Aggrieved over the judgment anddecree of the trial Court, the plaintiff preferred an appealsuit in A.S.No.47 of 1999 before the Principal District Court,Chengalpattu. The first appellate Court on appreciating thematerials placed on records, allowed the appeal by reversingthe judgement and decree passed by the trial Court.Challenging the same, the defendants have come forward withthe present second appeal.6.At the time of admission of the second appeal, thefollowing substantial questions of law were framed :-a) Whether the finding of theAppellate Court based on a point forconsideration wrongly framed by itregarding adverse possession is sustainablein law?b) Whether the decision of theAppellate Court which omitted to considermaterial documents and evidence wellconsidered by the trial court is valid andcorrect?c) Whether the decision of theappellate court based on the wrongappreciation of evidence and the findingrecorded by it is demonstrably incorrect onthe face of document and evidence producedbefore it and whether it is sustainable inlaw?d) Whether the appellate court is notcorrect in calculating the time oflimitation from 1965 onwards, the date ofpurchase by the plaintiff's vendor?7.The learned counsel appearing for the defendants and https://hcservices.ecourts.gov.in/hcservices/ the plaintiff are present and they are reiterated theaverments set out in the plaint as well as the writtenstatement.8.Heard Ms.C.R.Rukmani, learned counsel appearing forthe defendants and Mr.M.Ganesan, learned counsel appearing forthe plaintiff.9.This Court considered the rival submissions made bythe learned counsel on either side.10.Admittedly 'A' schedule property and the propertyabutting the southern side belonged to one, Thangathammal andher son in the year 1919. They sold the property to one,Manicka Mudaliar and its measurement is 65 x 387 feet. Thesaid Manicka Mudaliar had three sons. The second defendant isthe husband of the first defendant. His three sons havedivided the property which was purchased by the said ManickaMudaliar dated 11.12.1919, which was marked as Ex.B.1 alongwith other properties. The registered partition deed wasmarked as Ex.A.2. Accordingly, the northern portion wasallotted to Venkatathri, middle portion was allotted toNarayanasamy and southern portion was alloted to the seconddefendant in equal share, namely 65 x 129 feet. The 'D'schedule property in the partition deed comprised in surveyNo.335/3 Old survey No.592/1 was allotted to the plaintiff'spredecessor in title. The plaintiff purchased 'A' scheduleproperty from Venkatathri. On perusal of Ex.A.2, theplaintiff is in possession and enjoyment of the propertyadmeasuring 81 feet in respect of 65 feet on the east whichwas originally owned by Swaminatha Achari. Therefore, threesons of Manicka Mudaliar have divided the property into equalshares taking each 81 feet east to west and 145 feet north tosouth. Without considering Ex.A.2, the trial court dismissedthe suit. 11.That apart, under Ex.B.2 Swaminatha Achari andothers have sold an extent of one acre 12 cents in surveyNo.335/3 to the first defendant. The boundary of 'A' scheduleproperty shows that the property purchased from SwaminathaAchari shown eastern side of 'A' schedule property and thewestern side boundary has ben given as Savithri's property,who has purchased Venkatathri's share under Ex.A.3.Therefore, 'A' and 'B' schedule property of the suit propertywas purchased by the plaintiff and the plaintiff is inpossession and enjoyment of the suit property. Further onperusal of Ex.A.4 and Ex.A.5, the Narayanasamy Mudaliar, thebrother of the second defendant has conveyed the middleportion which was allotted to him to one, Chinnakannammal bythe sale deed dated 14.09.1983, which was marked as Ex.A.4,in which the east west measurement is given as 85 feetexceeding 81 feet. The remaining portion was sold to oneMuniammal by the sale deed dated 16.07.1957, which was markedas Ex.A.5, wherein the east west measurement is given as 81 https://hcservices.ecourts.gov.in/hcservices/ feet. The Advocate Commissioner was appointed and theCommissioner's report and plan were marked as Ex.C.1 andEx.C.2. Accordingly, Manicka Mudaliar purchased the propertyunder Ex.B.1 and thereafter his sons had divided the suitproperty in the year 1951 under Ex.A.2. Therefore, the titleof the plaintiff is proved and the first appellate courtrightly reversed the findings of the trial court and decreedthe suit. 12.Therefore, this Court does not find any valid reasonto interfere with the findings rendered by the first appellatecourt as such the first appellate court have analyzed theevidences both the documentary and oral in detail, adduced bythe parties and by giving cogent reasons, concluded rightlyand decreed the suit filed by the plaintiff. Accordingly, thisCourt is of the considered opinion that no substantialquestions of law are involved in this second appeal. Be thatas it may. All the substantial questions of law, formulated bythis Court in this Second Appeal, are answered in favour ofthe plaintiff and as against the defendants. 13.Accordingly, this Second Appeal is dismissed.Consequently, connected miscellaneous petition is closed. Noorder as to costs. Sd/-Assistant Registrar (CS-V)//True Copy//Sub Assistant RegistrarLokTo1. The Principal District Judge, Chengalpattu. 2. The District Munsif Court, Chengalpattu.3. The Section Officer, V.R. Section, Madras High Court, Chennai. S.A.No.544 of 2000RV(CO)GN(16/09/2020)