Madrasdated High Court · 2025

S.A.No.1190 of 2011JUDGMENTThis Second Appeal has been preferred by the defendants against the judgment and decree dated 25.01.2011 passed in A.S.No.31 of 2010 by the Sub-Court, Madhuranthagam.2. Parties are indicated herein as per their litigative status and ranking before the trial Court.3. According to the plaintiff, the total extent of 0.06 cents in gramanatham, Old S.No.106/1, New S.No.420/6 bounded on the east by street, south by plot of the plaintiff vagayara, on the west punja land of Perumal Pillai and on the north by Govindaraja Achari’s gramanatham site. The said gramanatham property is the ancestral property of the plaintiff, 1st and 2nd defendant's vagayara. The suit property was originally owned and possessed by Munusamy Achari, grandfather of the plaintiff and the defendants No.1 and 2. Munusamy had 3 sons namely Murugesan, Muthu and Thangavelu. Plaintiff is Murugesa Achari’s son. One Subramani was the sole legal heir of Muthu Achari. Defendants No.1 and 2 are the legal heirs of Thangavelu Achari. An oral family arrangement took place between the three brothers before the purchase of punja lands. Plaintiff’s father Munusamy Achari being the eldest son in the family and based on the custom he was 2/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 2011allotted the southern most 0.02 cents out of 0.06 cents. The sale deed dated 17.07.1970 would amply establish the fact. In the said deed itself, northern boundary is stated as Murugesa Achari. Murugesa Achari's northern portion of 0.02 cents out of 0.06 cents was allotted to Muthu Achari. The extreme northern 0.02 cents out of 0.06 cents allotted to Thangavelu Achari. The three brothers enjoyed the gramanatham land as per the oral partition as mentioned supra till their life-time and later their legal heirs succeeded to their respective allotted shares in the gramanatham land.4. Out of the 0.02 cents of Muthu Achari, his sole legal heir and son Subramani sold 0.01 cents on the southern side to the plaintiff herein under the registered sale deed dated 22.05.2005 and the same was registered on 09.06.2005 in Doc.No.792 of 2005 at Acharappakkam Sub-Registrar Office. 5. The plaintiff's further case is that he purchased 0.02 cents from the legal heirs of Muthu Achari and 0.01 cent from the above said Subramani by way of registered sale deed. By virtue of the said purchase, the plaintiff became owner of 0.03 cents out of 0.06 cents i.e., southern half of the said gramanatham land. The plaintiff also purchased 0.03/4 cents from Subramani in patta land in S.No.112/1A. Patta land is situated on the southern side of the gramanatham / suit property. The said 0.03 cents out of 0.06 cents, owned and 3/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 2011possessed by the plaintiff in gramanatham is shown as 'A' schedule property in the plaint. There was an old thatched house abutting the street on the eastern side, which is in the occupation of the defendants No.1 and 2, based on an understanding that it would be removed whenever the plaintiff requires it. On the western side of the said thatched house, the plaintiff has put up his hut and is temporarily residing there. In order to grab the property of the plaintiff, the defendants 1 and 2 have started group house construction in the 'A' schedule property during third week of August 2005 and the construction is also an illegal one. By removing a part of the thatched house without removing the entire thatched house, the defendants 1 and 2 then started to put up construction and thereby caused obstruction to the plaintiff. The plaintiff is entitled to the suit property as absolute owner of the same. Defendants 1 and 2 have no right to put up any construction much less permanent construction in the 'A' schedule property. 6. The defendants 1 and 2 removed the roof and put up illegal group house construction in the suit 'A' schedule property abutting the street on the eastern side of 'A' schedule property which is shown as 'B' schedule property. The defendants who are influential persons have obtained patta for 0.04½ out of 0.06 cents. The defendants are now causing cloud about the title of the plaintiff over the suit 'A' schedule property and are attempting to put up further 4/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 2011constructions in the 'B' schedule property from 15.10.2005. The suit has been filed for the relief of declaration of title in respect of 'A' schedule property and for recovery of possession of 'B' schedule property and for permanent injunction not to put up any further construction in the suit 'B' schedule property. 7. Per contra, case of the 1st defendant is that the plaintiff's father, Murugesa Achari is the eldest of three brothers- father of the plaintiff, father of the defendants 1 and 2 and Muthu Achari. Joint purchase of punja lands by Murugesa Achari and his three sons by Venkata Subbulakshmi Ammal through sale deed dated 17.07.1970 (Ex.A2) clearly shows that there was no partition up to 17.07.1970. Only after the purchase of punja land by Murugesa Achari and his three sons, family arrangement was made between Munusamy Achari, Muthu Achari and Thangavelu Achari. The defendants No.1 and 2's father was allotted 0.02 cents on the extreme eastern side abutting the street and Muthu Achari was allotted 0.02 cents on the eastern side of Thangavelu Achari, father of the defendants 1 and 2. Muthu Achari's son Subramani sold his two cents through a registered sale deed dated 23.05.2005. Plaintiffs' brother Srinivasa Achary was the attestor to the said sale deed. Consideration for the two cents was received by Subramani Achari long back and the defendants No.1 and 2 were put in possession of the entire four cents in 5/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 2011gramanatham in S.No.420/6 and patta was also granted to the defendants for 187 sq.metres. The defendants have completed the construction before the institution of the suit itself.8. Based on the divergent pleadings the trial Court framed the following issues:(i) Whether the plaintiff has right and title over the plaint 'A' schedule property.(ii) Is plaint 'B' schedule property encroached is an encroachment?(iii) Is the plaintiff entitled for the relief of declaration and for consequential relief of recovery of possession?(iv) Is the plaintiff entitled for relief of permanent injunction?(v) What are the other relief that the plaintiff is entitled to?9. At trial, to substantiate the plaint details, on the plaintiff's side, two witnesses were examined and three documents were marked. No evidence was let in by the defendants side. Exs.C1 and C2 are the report and rough plan of the Advocate Commissioner.6/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 201110. Upon consideration of oral and documentary evidence and after hearing the arguments advanced on either side, the trial Court has decreed the suit in entirety in favour of the plaintiff with costs.11. Aggrieved, the defendants No.1 and 2 herein preferred Appeal in A.S.No.31 of 2010 before the Sub-Court, Madhuranthagam and moved an application under Order 41 Rule 27 of CPC, and sought for permission to receive the sale deed dated 23.05.2005 and granted under Natham Land Tax Scheme. Upon consideration of entire records and after hearing arguments of both the sides, the First Appellate Court concluded that, based on Exs.A2 and A3, sale deeds, the title to 'A' schedule property in the name of plaintiff is proved and dismissed the First Appeal.12. The following substantial questions of law arise for consideration: “Whether the First Appellate Court is justified in rejecting the application filed under Order 41 Rule 27 of CPC in view of the fact that additional evidence sought to be produced is relevant to adjudicate the issue?”13. As regards, the application made by the defendants before the First 7/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 2011Appellate Court in I.A.No.15 of 2011 for receiving sale deed dated 23.05.2005 and the patta standing in the name of Thangavelu Achari on the ground that no opportunity was granted for the defendants to file the documents in the trial Court and the documents are vital documents. The said application was resisted by the plaintiff stating that the documents should have been filed along with the written statement and during trial, the said documents were not filed and marked. It appears that during trial, for examination of defendant side witnesses, it was posted on 11.08.2009, 17.08.2009, 20.08.2009, 24.08.2009 and 26.08.2009. No evidence was let in by the defendants and the case was closed and the matter was posted for arguments. Despite granting adjournments for letting in evidence by the defendants, they did not utilise the opportunities which were given many times (5 adjournments) and now it should not lie in the mouth of the defendants that no opportunity was granted to them to let in evidence. As the application lacks bona fides, it was rightly dismissed by the First Appellate Court. This Court also does not find any infirmity or perversity in the findings of the First Appellate Court.14. It is an admitted fact that an extent of 0.06 cents in gramanatham in S.No.420/6 originally belonged to Munusamy Achari, the grandfather of the plaintiff and defendants No.1 and 2. It is also admitted fact that Munusamy Achari had three sons, 1) Murugesa Achari [son - Ramadoss], 2) Muthu Achari 8/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 2011[son - Subramani] and 3) Thangavelu Achari [sons - Kannan and Ponnan] (Details have been given with the available records). Subramani is the son of Muthu Achari and defendants Kannan and Ponnan are sons of Thangavelu also is not in dispute. 15. As regards, non-joinder of necessary parties, PW1 has acceded to the fact that he is not the only legal heir of Murugesa Achari. Whether any partition is effected between the legal heirs of Murugesa Achari is not known and not elicited through PW1. Further more, no details are stated in the written statement as to who is to be added as party. In such a view of the matter, the First Appellate Court has answered this issue in favour of the plaintiff and it cannot be found fault with.16. At the outset the total extent of six cents in S.No.106/1, Old S.No.420/6, is the ancestral property which originally belonged to the grandfather of the plaintiff Munusamy Achari is not at all in dispute. But, it was stated that based on oral partition took place among the three sons of Munusamy Achari namely Murugesa, Muthu and Thangavelu prior to the year 1970 which is not admitted by the defendants. Plaintiff states that southern most portion of two cents is allotted to the father of the plaintiff, Murugesa and middle portion to Muthu Achari and northern portion of two cents to 9/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 2011Thangavelu who is none other than the father of the defendants 1 and 2. The plaintiffs apart from the 0.02 cents allotted to his father, his father purchased another 0.01 cent from the sole legal heir of Muthu Achari namely Subramani Achari. On the other hand the defendants 1 and 2 would contend that the division was on the east-west direction and the western portion was allotted as the share of the plaintiff's father and the middle portion to Muthu Achari and eastern end to the defendants' father, Thangavelu Achari. 17. Based on the boundary details found in Ex.A2 sale deed dated 17.07.1970 executed by Venkata Subbulakshmi Ammal in favour of Murugesa Achari and others, the three brothers have already partitioned and the southern most two cents were allotted to the plaintiff's father Murugesa and it is pellucid that 0.06 cents of land was divided as north-south. On 23.05.2005, the plaintiff has purchased one cent of land from Subramani, S/o. Muthu Achari. Wherein, in the boundary details, it has been recited that ''uhkjh!; tPl;L kidf;F tlf;F'' which clearly asserts the division of property put-forth by the plaintiff. It also strongly indicates that Muthu Achari was allotted 0.02 cents of land to the north of 0.02 cents allotted to Murugesa Achari. Though it was contended by the defendants that the defendants' father Thangavelu Achari purchased 0.02 cents from Subramani was not at all proved by marking relevant sale deed. Whereas the plaintiff has proved that his father was 10/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 2011allotted two cents towards south and on the north, it was out of two cents that he purchased one cent. PW1 has spoken about the construction made by the defendant in the 'B' schedule property. Though the Advocate Commissioner has been appointed and he has filed the report and plan in Exs.C1 and C2 and he has stated that incomplete new house under group house scheme is found in the suit property. No witness was examined by the defendant's side. More so, the rough sketch detail/Ex.A1 was not denied by the defendant. Therefore, in such circumstances, the relief of recovery of possession was also granted in favour of the plaintiff.18. In view of the aforestated discussions, the substantial questions of law are answered against the appellants / defendants No.1 and 2. This Court does not find any infirmity or perversity in the findings of the First Appellate Court.19. Based on the aforesaid discussions and observations, this Second Appeal stands dismissed and the judgment and decree in A.S.No.31 of 2010 and I.A.No.15 of 2011 dated 25.01.2011 passed by the Sub-Court, Madhuranthagam is hereby confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed.11/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 201125.04.2025Index : Yes/No Speaking / Non-speaking orderssnTo:1.The Sub-Court, Maduranthagam.2.The District Munsif, Maduranthagam.3. The Section Officer, V.R.Section, High Court of Madras, Chennai.12/13 https://www.mhc.tn.gov.in/judis S.A.No.1190 of 2011R.KALAIMATHI, J.,ssnS.A.No.1190 of 2011andM.P.No.1 of 201125.04.202513/13