Madrasdated High Court · 2025

SA No. 1327 of 20098.SUGUNADEVIW/O.RAMU D/O.GANGADHARAN R.KUNATHUR VILLAGE, POLUR TALUK, TIRUVANNAMALAI DISTRICT. 1st appellant died, a2 to 8 are brought on record s lrs of the deceased 1st appellant vide court order dated 24/04/2025 made in cmp nos 11209,11211 and 11212 of 2021 in sa no 1327 of 2009(SSKJ)..Appellant(s)Vs1.KANNANS/o Mannu, R.Kunathur Village, Polur Taluk, Tiruvannamalai District.2.SAHADEVANS/o Mannu, R.Kunathur Village, Polur Taluk, Tiruvannamalai District. ... RespondentsPRAYER in both Appeals : Appeals filed under Section 100 of CPC., against the judgment and decree of the Subordinate Judge, Arni, in A.S.Nos.69 & 74 of 2007 dated 14.08.2009 in confirming the judgment and decree of the Court of the District Munsif, Polur in O.S.No.347 & 327 of 2001 dated 18.07.2007. In both Second Appeals:For Appellant(s):M/s.V.SrimathiFor Respondent(s):M/s M.Sriram for R1M/s T.Dhanyakumar for R2__________Page 2 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 2009COMMON JUDGMENTThese Appeals have been filed against the judgment and decree of the Subordinate Judge, Arni, in A.S.Nos.69 & 74 of 2007 dated 14.08.2009 in confirming the judgment and decree of the Court of the District Munsif, Polur in O.S.No.347 & 327 of 2001 dated 18.07.2007.2. Heard Mrs.V.Srimathi, learned counsel for the appellants and Mr.M.Sriram, learned counsel for R1 and Ms.T.Dhanyakumar, learned counsel for R2 and perused the materials available on record. 3. The plaint in O.S.No.347 of 2001 in brief:The deceased first appellant is the plaintiff who has filed a suit in O.S.No.347 of 2001 for seeking the relief of declaration and permanent injunction. The defendants in O.S.No.347 of 2001 have filed a suit in O.S.No.327 of 2001 for seeking the relief of declaration and permanent injunction in respect of the same suit property. The learned Trial Judge has partly decreed the suit filed by the deceased first appellant in O.S.No.347 of 2001 and the other suit in O.S.No. 327 of 2001 has been decreed. The plaintiff in O.S.No.347 of 2001 and the defendant in O.S.No.327 of 2001 have preferred a First Appeal in A.S.Nos.69 & 74 of 2007 challenging both the judgments of __________Page 3 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 2009the Trial Court. The First Appellate Court has also confirmed the judgments of the Trial Court and dismissed both the Appeals. Aggrieved over that, now these two Second Appeals have been preferred.4. The plaint in O.S.No.327 of 2001 in brief:The suit property belonged to one Periyapaiyan and he had sold the same to plaintiffs' mother Malliammal through a registered sale deed dated 19.09.1944. From the date of purchase, Malliammal had been in possession and enjoyment of the property till her death and subsequent to her death, the plaintiffs have inherited the same and had been in joint enjoyment of the same. The plaintiffs had been in enjoyment without any objection from any quarters for more than the statutory period and also had adverse possession over the same. The defendant has no right in the suit property and had created bogus revenue documents and obtained patta by making false representations. As the defendant had created disturbance to the peaceful possession and enjoyment of the plaintiffs over the suit property, the plaintiffs had issued a pre-litigation notice on 20.08.2001. On receiving the same, the defendant had issued reply notice on 21.09.2001 with false allegations. Hence, the plaintiffs have filed a suit for seeking the relief of declaration and permanent injunction. __________Page 4 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 20095. The written statement filed by the defendant in O.S.No.327 of 2001 in brief:The defendant is in direct enjoyment of the suit property as its owner. An extent of 62 cents out of 1 acre 85 cents in S.No. 326 / B1 was purchased by the defendant's father from Periyapaiyan through a registered sale deed dated 31.5.1945. After the demise of the defendant's father, his legal heirs who we re inclusive of the defendant had partitioned the property through an oral partition and were in enjoyment of the same and in which, they got 47 cents each. As the defendant had been allotted with 15 cents excess, he had been in enjoyment of 62 cents. He had also purchased 3 cents from one Ponnusami under a registered sale deed dated 02.07.1968 and 12 cents from one Balakrishnan on 02.05.1974. But in the sale deed dated 02.05.1974, the survey number has been wrongly mentioned as S.No.319/2 instead of S.No.326/B1. But the property details have been described correctly and the boundaries have been given rightly. So the defendant had been in total enjoyment of 77 cents in S.No. 326 / B1. Hence the plaintiffs are not entitled to the relief as prayed. 6. The defendant in O.S.No.327 of 2001 has filed another suit in O.S.No. 347 of 2001 for claiming the relief of declaration of possession on the very same pleadings made by him in the written statement. The plaintiffs in __________Page 5 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 2009O.S.No.327 of 2001 as the defendants in other suit has filed the written statement by making the very same pleadings raised by them in their plaint filed in O.S.No. 327 of 2001. 7. On the basis of the above pleadings, the Trial Court has framed the following issues in O.S.No.347 of 2001:"1. rh;nt vz;/316-gp1?y; kw;Wk; rh;nt vz;/319-2?y; thjpa[k; mtupd; jfg;gdhUk; brhj;Jf;fis fpuak; bgw;wJ cz;ikah>2/ jhthr;brhj;jpd; RthjPdj;jpy; gpujpthjpfs; cs;sJ vd;gJ cz;ikah>3/ tpsk;g[if ghpfhuk; thjp nfhupathW bgwj;jf;ftuh>4/jhthtpy; nfhupago epue;ju cWj;Jjf;fl;lisg; ghpfhuk; thjpf;F fpilf;ff;Toajh>5/ thjpf;Ff; fpilf;ff;Toa ,ju ghpfhu';fs; vd;d>@8. During the course of the trial, on the side of the plaintiff, one witness has been examined as PW1 and exhibits A1 to A6 were marked. On the side of the defendants, the second defendant has been examined as D.W.1 and Exhibits B1 to B5 were marked. At the conclusion of the trial, the Trial Court had partly decreed the suit to an extent of 65 cents out of 185 cents in S.No. 326 / B1. The suit has been dismissed in respect of rest of the claim made by the plaintiff therein. __________Page 6 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 20099. In the other suit filed in O.S.No. 327 of 2001, Trial Court has framed the following issues:@1/ jhth brhj;J thjpf;F ghj;jpag;gl;lJ vd;gJ cz;ikah>2/ jhth brhj;jpd; mDgtk; kw;Wk; RthjPdj;jpy; gpujpthjp cs;sjhf TWtJ rhpah>3/ thjpfs; jhthtpy; nfhhpathW tpsk;g[if ghpfhuk; bgw mUfij cilatuh>4/tHf;fpw;F tHf;F KPyk; ,y;iy vd;gJ rhpah>5/ thjpfs; nfhhpathW epue;ju cWj;Jf;fl;lis ghpfhuk; bgwj;jf;ftuh>6/ thjpfSf;F fpilf;fj;jf;f ,ju ghpfhu';fs; vd;d>@10. During the course of the trial, on the side of the plaintiffs, the second plaintiff has been examined as P.W.1 and Exhibits A1 to A6 were marked. On the side of the defendant, the defendant has been examined as D.W.1 and Exhibits B1 to B6 were marked. The Advocate Commissioner has been examined as C.W.1 and the Court documents were marked as Exhibits C1 to C3. At the conclusion of the trial, the Trial Judge has decreed the suit in respect of the relief of declaration and permanent injunction. 11. Aggrieved over that, two First Appeals in A.S.Nos.69 & 74 of 2007 have been preferred by the plaintiff in O.S.No.347 of 2001. Through a common judgment dated 14.08.2009, the First Appellate Court has dismissed both the __________Page 7 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 2009First Appeals by confirming the judgments of the Trial Court in O.S.Nos.327 & 347 of 2001. Now, the second appeals have been preferred by challenging the common judgment of the First Appellate Court confirming the Trial Court judgments and these Second Appeals have been admitted on the following common substantial questions of law :"1.Whether the recitals in the boundaries do not prevail over survey number and on the facts and circumstances of the case, whether the Courts below ought not to have fixed the boundaries of the property and decreed the suit as prayed for by the appellant?2. When the respondents are interested in only 0.66 cents of the property in S.No.326/B1 in an extent of 1.85 cents, are the Court below justified in dismissing the suit of the appellant despite proof of possession of the property?"12. The learned counsel for the appellants submitted that it is a settled position of law that the boundaries will prevail over the survey numbers and that has been unfortunately ignored by both the Trial Court and the First Appellate Court. Despite the first appellant had produced documents to show his entitlement of 77 cents in S.No. 326 / B1, the courts below have not properly considered the same. Despite the respondents have restricted their claim to only an extent of 66 cents in S.No. 326 / B1, the Trial Court has __________Page 8 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 2009decreed the suit for an extent of 66 cents for the respondents, as they have restricted their claim only with regard to 66 cents in view of their title deeds for the same. But the first appellant had produced title deeds to show that he was entitled to 77 cents, but that was not considered by the Courts below. The First Appellate Court had also dismissed the First Appeals by confirming the decision of the Trial Court. 13. The learned counsel further submitted that the Advocate Commissioner has also stated in his report that the property of the respondents is lying on the southern side of the Appellants' property and that the respondents are in occupation of 66 cents in S.No.326/B1. Since the respondents themselves have claimed their right only in respect of 66 cents, the Courts below could have decreed the suit of the first appellant in entirety to an extent of 77 cents to the sale deed produced by him. The first appellant had purchased an extent of 15 cents from one Balakrishnan and Ponnusami respectively, apart from an extent of 62 cents obtained from family partition. The mis-description in survey number has been misconstrued by the Courts below without taking note of the boundary details of the property for which the appellants have acquired title and in enjoyment. __________Page 9 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 200914. The learned counsel for the respondents submitted that so far as purchase of 66 cents by their mother Malliammal is concerned, there cannot be any dispute. The appellants have not established that 12 cents have been purchased by them. It is wrong on the part of the appellants to plead that boundaries of their properties is inclusive of 12 cents without establishing the same. The Trial Court and the First Appellate Court has rightly dealt the issues in the background of the evidence available and hence, these Appeals should be dismissed. 15. So far as the respondents' claim in respect of 66 cents in S.No. 326 / B1, there cannot be any dispute. As the respondents mother Malliammal has purchased the above said 66 cents through a registered sale deed dated 19.09.1944 and had been in continuous enjoyment from the time of the said purchase. It is right for the Trial Judge to concede the claim of the respondents in respect of 66 cents and decreed the suit as prayed. Even the appellants does not lay a claim saying that the respondents did not have any right over 66 cents in S.No. 326 / B1.16. In O.S.No.347 of 2001, the specific claim of the first appellant is that even though his title deed namely sale deed that he obtained from one __________Page 10 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 2009Balakrishnan, which is marked as exhibit A3 represents the S.No. 319 / 2 for an extent of 12 cents, there is a mistake in the description and it ought to have been mentioned as S.No. 326 / B1. It is the further claim of the first appellant that 12 cents is inclusive of the extent of the property enjoyed by the first appellant in S.No. 326 / B1. 17. On perusal of the judgments of the Trial Court and the First Appellate Court, it is seen that the Courts did not convince with the claim of the first appellant that there is a mistake in describing the survey number. Even though the court got convinced about the first appellant's claim in respect of 62 cents which he got by way of family partition, the Court had not believed the other claim of 12 cents. If the appellants claim that there is a mistake in reciting the survey number in the sale deed which was marked as Ex.A3 and it relates to the actual Survey No.326 / B1, then it has to be proved before the Court that within the boundaries of the property in enjoyment of the appellants, there existed 77 cents and hence they are entitled to get the benefit of the settled position of law that the boundaries will prevail over the survey number.18. In the instant case, the appellants have been continuously claiming that there was a mistake in describing the survey number, but, they have __________Page 11 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 2009omitted to convince the Court by showing that in between the lands of the respondents and Balakrishnan, there existed 77 cents in S.No.326/1B and that has been in enjoyment of the appellants. The Trial Court and the First Appellate Court have not convinced with the arguments of the first appellant that he had 77 cents within the boundary details irrespective of the right or wrong description description in Ex.A3 sale deed with respect to survey numbers.19. It is neither contended that the Advocate Commissioner who has been appointed during the suit proceedings, had measured the suit property with the help of the Surveyor and the Surveyor had shown that an extent of property in the enjoyment of the appellants in S.No. 326/B1 had measured 77 cents. In the absence of the above proof, the appellants cannot be given with the benefit of position of law that boundaries will prevail over the survey numbers. In other words, the appellants cannot be allowed to claim right position of law for wrong fact and situation on the ground. As the courts below have rightly dealt the issues and appreciated the evidence and the factual situation rightly and arrived at the correct conclusion, I do not find any scope for interference in these Second Appeals. __________Page 12 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 200920. So far as the substantial questions of law are concerned, this Court can only answer that the position of law as stated in the substantial question of law is right, but it is not shown to be applicable to the facts actually proved by the first appellant before the Trial Court. Accordingly, the first substantial question of law is answered. So far as the second substantial question of law is concerned, it is about the claim of the appellants in excess of the respondents' claim of 66 cents. There cannot be any quarrel with regard to 66 cents in S.No. 326/B1. Just because there are remaining extent of whole extent of 185 cents subtracting the respondents' claim in respect of 66 cents, it cannot be held that rest of the extent belongs to the appellants irrespective of the proof produced before the court in substantiation of the claim made. Thus, the substantial question of law No.2 is also answered. 21. In the result, the Second Appeals filed in S.A.Nos.1327 & 1328 of 2009 are dismissed. No costs. Consequently, connected miscellaneous petition is also closed. 09-09-2025Index: Yes/NoSpeaking/Non-speaking orderNeutral Citation: Yes/Nogsk__________Page 13 of 14 https://www.mhc.tn.gov.in/judis SA No. 1327 of 2009DR.R.N.MANJULA, J.GSKTo1.The Subordinate Judge, Arni,2.The District Munsif, Polur 3.KANNAN S/o Mannu, R.Kunathur Village, Polur Taluk, Tiruvannamalai District.4.SAHADEVANS/o Mannu, R.Kunathur Village, Polur Taluk, Tiruvannamalai District.SA Nos. 1327 & 1328 of 2009 andM.P.No.1 of 200909-09-2025__________Page 14 of 14