Madrasreserved High Court · 2024

C.S. No.56 of 2015N.Venkatesan, he having become entitled to the same under a registered partition deed dated 21.05.1977. Though the extent mentioned in the registered partition deed was 2 grounds 2209 sq.fts, the actual extent comprised in S.No.124/1, Velachery Village, which was subject matter of the partition deed was 8285.5 sq.fts. 2.2. According to the plaintiffs, they are in joint possession and enjoyment of both Item Nos.1 and 2 of the suit properties and being the original legal heirs of Late N.Venkatesan, who died intestate on 07.02.1986, the plaintiffs are entitled to equal share namely 1/5th each in Item No.1 as well as Item No.2 of the plaint schedule properties.2.3. The plaintiffs also contend that in Item No.1 of plaint schedule property, the plaintiffs and the defendant put up superstructure in the Eastern side, contributing equally and thereafter, the defendant, the youngest brother was permitted to reside there until the partition takes place. However, the defendant let out some portions of the property to tenants without the consent and knowledge of the plaintiffs and has been enjoying 3/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015the monthly rents without sharing the same to the plaintiffs. When the plaintiffs questioned the same, the defendant set up exclusive title on himself for the constructed portion. The defendant issued a notice on 02.08.2014 for partition to which the plaintiffs sent a reply notice on 11.08.2014. On the strength of these averments and allegations, the plaintiffs filed the suit.3. The brief facts set out by the defendant by way of written statement-cum-counter claim are as follows:3.1. The defendant admits relationship between the parties, however the defendant denies that the Item No.1 of the plaint schedule property was measuring 8285.5 sq.ft. A portion of land measuring 1800 sq.ft comprised in S.No.124/1 belonged exclusively to the defendant and the plaintiffs have no manner of right, title or interest over the same. The plaintiffs are entitled only to partition in respect of 7009 sq.ft comprised in S.No.124/1 and not 8285.5 sq.ft. 3.2. The defendant denies the claim of the plaintiffs that they have also contributed for construction of the building in the Eastern portion of 4/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015the suit property viz., Item No.1 of the plaint schedule property. The defendant claims to be in continuous, uninterrupted and exclusive possession of 1800 sq.ft, compounded on all four sides. The defendant has also entered into a development agreement with a contractor on 22.07.2007 and has constructed the entire building, comprising of first and second floors with asbestos roofing at a total cost of Rs.5,90,000/-, for which he has also availed of loans. 3.3.According to the defendant, the said 1800 sq.ft was neither joint family property nor individual property of his father, late N.Venkatesan, but, it exclusively belonged to the defendant. The defendant, therefore filed a counter claim along with the written statement to declare 1800 sq.ft comprising of ground, first and second floors at Door No.23/1, East Mada Street, Velacherry, Chennai – 600 042 as his property besides seeking for partition in respect of his 1/5th share in the 7009 sq.ft situate on the Western side of the defendant's property and Item No.2 measuring 979 sq.ft comprised in S.No.292, New S.No.292/1, Velacherry Bye Pass Road, Velacherry, Chennai - 42. 5/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 20154. To the counter claim filed by the defendant, the plaintiffs filed a reply statement which is summarised hereunder:4.1. The plaintiffs specifically denied the claim of the defendant that he was exclusively entitled to 1800 sq.ft and that the plaintiffs were never in possession of the same. According to the plaintiffs, the 1800 sq.ft is comprised in S.No.124/1 and forms part of the registered partition deed dated 21.05.1977, alloted to the father, Venkatesan. Even according to the defendant, the total extent of property measures 8479 sq.ft and if 1800 sq.ft is taken away, the remaining extent would only be 6679 sq.ft which would not tally with the defendant's claim of 7009 sq.ft, the extent available under the registered partition deed. The plaintiffs have equally contributed for construction of the ground floor. The plaintiffs contend that they orally objected for the construction of the first and second floors over and above the ground floor. 4.2.According to the plaintiffs, the said 1800 sq.ft for which counter claim has been made was in possession of the father of the plaintiffs and 6/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015defendant till his demise and thereafter, it has been in joint possession of the plaintiffs and defendant. The plaintiffs never accepted the defendant's title and only for the first time by way of lawyer's notice on 02.08.2014, the defendant claimed exclusive possession in respect of 1923 sq.ft. The occupation of the defendant is only permissive in nature and the defendant has deceived the plaintiffs who were under the bonafide belief that the entire property was common for everyone. The plaintiffs, therefore prayed for dismissal of the counter claim. 5. On 27.09.2018, this Court framed the following issues.“ (1) Whether the measurements and extent of item No.1 of the properties described in the Schedule to the plaint are correct?(2) Whether the properties described in item Nos.1 and 2 of the Schedule to the plaint are liable to be partitioned among the plaintiffs and the Defendant in five equal shares?(3) Whether the Defendant is entitled to a declaration of exclusive ownership of the properties described in Schedule B of the counter claim in the Written statement of the Defendant?(4) Whether the Plaintiffs are entitled to permanent injunction restraining the Defendant from alienating item No.1 of the properties described in the Schedule to the plaint? (5) Whether the Defendant is entitled to permanent injunction restraining the Plaintiffs from disturbing, interfering and trespassing into the properties described in the Schedule B of the counter claim in the Written Statement?(6) To what reliefs, if any, are the parties entitled?” 7/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 20156. The second plaintiff examined himself as P.W.1. The third plaintiff examined himself as P.W2 and marked Exhibits P1 to P13 on the side of the plaintiffs. On the side of the defendant, the defendant examined himself as D.W.1 and marked Exhibits D1 to D38. The Advocate Commissioner was examined as C.W.1 and his report was marked as Ex.C1 and his additional report was marked as Ex.C2. 7. I have heard Mr.S.Senthilnathan, learned counsel for the plaintiffs and Mr.T.Gowthaman, learned Senior Counsel for Mr.S.Santhan, learned counsel for the defendant.8. Issue Nos.1 to 3:- The relationship between the parties is not in dispute. Infact, even in respect of Item No.2 of the plaint schedule property, there is no dispute and the defendant agrees that the said item No.2 of the plaint schedule property is to be shared equally amongst the plaintiffs and the defendant and in fact, the defendant also admits that the plaintiffs are entitled to 1/5th share in item No.1, however his only objection is that the extent as mentioned in the 8/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015registered partition deed alone is available for partition and the additional extent of 1800 sq.ft available in S.No.124/1 belongs to him absolutely and over the said land, he has put up construction of ground, first and second floors out of his own funds and with the help of loans availed by him. 9. However according to the plaintiffs, the extent mentioned in the partition deed was incorrect and the actual extent available is 8289.93 sq.ft (initially mentioned as 8285.5 sq.ft and subsequently amended). The plaintiffs also claim that they have contributed equally for construction of the ground floor portion over the said 1800 sq.ft and admit that the defendant has put up construction of first and second floors, though without the consent of the plaintiffs. 10. Thus the questions that need to be answered are as to whether Item No.1 of the plaint schedule property measures 8289.93 sq.ft or only 7009 sq.ft as found in the registered partition deed and whether the extent of 1800 sq.ft claimed to be in exclusive possession and enjoyment of the defendant is his absolute entitlement or as to whether it is joint property in 9/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015respect of which also the plaintiffs are entitled to 1/5th share each.11.The plaintiffs as well as the defendant admit to the execution of registered partition deed dated 21.05.1977. In fact, the plaintiffs, the defendant and their father, late N.Venkatesan were parties to the said partition deed. The 'A' schedule property under the said registered partition deed was alloted to their father, N.Venkatesan which is also not disputed by either of the parties. The fact remains that the 'A' schedule property comprised in S.No.124/1, Velachery Village has been mentioned to be of an extent of 2 grounds and 2209 sq.ft. The plaintiffs have produced the certified copy of the registered partition deed dated 21.05.1977 as Ex.P2. Ex.P9 is the Natham Patta issued in the name of the plaintiffs and the defendant. Ex.P10, is the notice of Demand of Urban Land Tax served on the father of the plaintiffs, N.Venkatesan. Ex.P11 is the receipt for payment challan for item No.1 of the plaint schedule property, the said receipt has been issued in the name of their father, N.Venkatesan. Ex.P12 is the patta passbook bearing No.97 which is in the name of the father, N.Venkatesan. which is in respect of Item No.2 of the plaint schedule property. 10/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 201512.In all, the documents which are in the name of the father, N.Venkatesan, the property has been described is Door No.23, East Mada Street, Velachery, Chennai-42. Even in Ex.P2, partition deed the property allotted to the father, N.Venkatesan has been described as lands measuring 2 grounds 2209 sq.ft together with building standing thereon being bounded on the West by East Mada Street, East by Karunambigai Colony, North by Arjuna Naicker's vacant land and South by Pallipattu Ramachandra Naicker's vacant land. It is also seen from the partition deed that no other property in S.No.124/1, Velacherry Village was subject matter of the partition deed. 13.The specific case of the defendant is that the property available for partition amongst the plaintiffs and the defendant is only the said 2 grounds and 2209 sq.ft i.e., 7009 sq.ft and the 1800 sq.ft, situate on the Eastern side of the joint family property belongs to him absolutely. It is for this extent of 1800 sq.ft that the defendant has also made a counterclaim. However, except for pleading that he has been in exclusive and uninterrupted 11/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015possession for several decades, the defendant has not stated as to how he became entitled to the said extent of 1800 sq.ft. The defendant has not even pleaded adverse possession or ouster to stake a claim over the said 1800 sq.ft. Having filed a counter claim which is nothing but a plaint by itself, the defendant has to plead and prove his entitlement to the said 1800 sq.ft for becoming entitled to a decree in the counter claim. However, except for the mutation of records in respect of the building constructed over the 1800 sq.ft, I do not find a shred of evidence to establish right, title or interest in the 1800 sq.ft land in favour of the defendant. 14. According to the defendant, the said 1800 sq.ft is not the joint family property and did not even belong to the father, and that being the position, while entering into the deed of partition, one of the boundaries to schedule 'A' properties i.e., the property allotted to the father, N.Venkatesan, ought to have been mentioned as property of the defendant. However, there is no such mention of any property belonging to the defendant in the partition deed and more specifically in the schedule 'A' to the said partition deed, marked as Ex.P2. In fact, during cross examination, D.W.1 has 12/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015admitted that his father, the plaintiffs and the defendant jointly resided in Door No.23, East Mada Street, Velachery and item No.1 of the suit property is Door No.23, East Mada Street, Velachery. He also admitted that the construction, he put was only in Door No.23, East Mada Street and the Corporation assessed the new building as Door No.23/1, East Mada Street. Even in Ex.D10, which is the House Warming Ceremony Invitation, the defendant has mentioned the property address as only D.No.23, East Mada Street, Velacherry, Chennai -42. 15. Therefore, from the oral and documentary evidence available on record, it is abundantly clear that the property which was subject matter of partition in 1977 amongst the plaintiffs, defendant and their father, N.Venkatesan was only Door No.23, East Mada Street, Velacherry, Chennai-42. The schedule 'A' to the said partition deed, which is allotted to the father, N.Venkatesan, specifically mentions four boundaries to the said partition deed which have already been set out herein above. Therefore, the extent available within the said four boundaries is the actual extent available in S.No.124/1, (Door No.23, East Mada Street). 13/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 201516. Though the defendant claims title to the Eastern portion measuring 1800 sq.ft, except for producing proof of construction of the building and mutation of records in his name, the defendant has not been able to establish, by adducing any satisfactory evidence that the 1800 sq.ft on the Eastern side of the plaint schedule property belongs to him. The counter claim is totally silent as to how the defendant acquired title in and over the said 1800 sq.ft., except for passing reference in the counterclaim that the defendant has been in continuous, uninterrupted and exclusive possession and enjoyment of 1800 sq.ft for several decades. The said pleadings remains unsubstantiated even at the time of trial. 17.On the contrary, the revenue records in the name of the father, N.Venkatesan and subsequent to his demise, the joint names of the plaintiffs and the defendant would all clearly go to show that the property allotted to the father, N.Venkatesan, under the registered partition deed dated 21.05.1977, was only Door No.23, East Mada Street, Velachery, Chennai -42. No doubt, the schedule in the said partition deed mentions the extent as 14/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 20152 grounds 2209 sq.ft which works out to 7009 sq.ft. In fact the plaintiffs themselves mentioned the extent of item No.1 property as 8285.85 sq.ft in the plaint schedule item No.1, however they have taken out an Application in A.No.5284 of 2018 and amended the extent as 8289.93 sq.ft. It is the specific case of the plaintiffs that the extent of Door No.23, East Mada Street, Velachery, Chennai-42 was wrongly mentioned as 2 grounds & 2209 sq.ft. In 'A' schedule of the registered partition deed dated 21.05.1977. The learned counsel for the plaintiffs would state that boundaries would prevail over extent and therefore, the incorrect extent mentioned in the registered partition deed cannot be taken as correct when the actual extent available within the four boundaries was much more. 18. Per contra, the learned Senior Counsel appearing for the defendant and counter claimant submit that the plaintiffs cannot claim any additional area over and above what was mentioned in the partition deed and the plaintiffs have not been able to prove joint or constructive possession of the 1800 sq.ft and they have also miserably failed in proving contribution for construction of ground floor portion in the said 1800 sq.ft. He would 15/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015further contend that it was the defendant who ventured to issue the notice for partition first and therefore, it would clearly expose the avaricious attitude on the part of the plaintiffs to usurp the defendant's property as well.19. As already seen, D.W.1 admitted that the property in which he put up construction was only comprised in Door No.23, East Mada Street, Velachery, Chennai-42, even as late as, at the time of House Warming Ceremony, the defendant has voluntarily mentioned the Door Number only as Door No.23. Merely because the Corporation has assigned Door No.23/1 while assessing the property to tax in the name of the defendant, it would not bestow the defendant with title to the land over which the construction has been put up. No doubt, the plaintiffs are also not able to establish their claim of equal contribution for putting up construction of the ground floor. The entire building assessed to Tax at Door No.23/1, comprising of ground and two upper floors has only been assessed in the name of the defendant. The defendant has also produced voluminous documents to establish the fact that he has put up construction and got the building assessed in his name. Exhibits D17 & D18 are the property tax receipts and assessments 16/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015respectively. Similarly, Ex.D21 is receipt for payment of water and sewerage Tax issued by CMDA in the name of defendant. Exhibits D27 to D29, D36 issued by Corporation of Chennai are also in the name of the defendant only. Ex.D37 and Ex.D38, the Electricity Card and Consumption Receipt respectively. The defendant has also produced overwhelming documentary evidence to show that the entire construction was put up by the defendant out of his own funds and also from the funds availed of by way of housing loan, jewel loan etc. Though the plaintiffs' claim in the plaint as well as in the reply to the counterclaim that the ground floor was constructed out of the joint exercise of the plaintiffs and the defendant, the said claim remains on paper and has not been proved. 20. On the contrary, the defendant has established that he has put up the entire construction at his costs. However, the construction of the building by the defendant will not clothe him with any right in the land which admittedly belonged to the father. The defendant especially having filed a counterclaim has miserably failed to prove his entitlement in and over the 1800 sq.ft. 17/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015 21. The defendant, clearly, is attempting to take advantage of the incorrect extent mentioned in the Schedule 'A' to the partition deed dated 21.05.1977 in Ex.P2, coupled with the fact that he has put up construction in Eastern portion of the said property. However, even according to the defendant from the sketch filed along with the written statement and counter claim, the total extent of property excluding 1800 sq.ft. works out to 6446 sq.ft only, as against 7009 sq.ft which should have been available as per the registered partition deed and which is the case of the defendant himself. Therefore, the irrefutable conclusion is that the total extent of property available in Item No.1 is 8289.93 sq.ft including the 1800 sq.ft claimed by the defendant. The learned Advocate Commissioner who inspected the property has filed a report and also additional report which have been marked as Ex.C1 and C2 and the Advocate Commissioner also examined as C.W.1. In pursuance of the additional report setting out the extent as 8289.93, the plaintiffs have also amended the plaint to incorporate the said extent.18/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 201522. The learned counsel for the plaintiffs has also relied on the following decisions in support of his contentions:-(i) Sawarni Vs. Inder Kaur reported in, CDJ 1996 SC 607;(ii) Union of India and others Vs. Vasavi Co-op. Housing Society Limited & Others reported in, CDJ 2014 SC 006.(iii) Vidya Devi @ Vidya Vati (dead) by L.Rs. Vs. Prem Prakash reported in CDJ 1995 SC 383.23. In Sawarni's case, (referred herein supra), the Hon'ble Supreme Court held that mere mutation of name in the revenue records would not create or extinguish title and that it would not have any presumptive value on title as mutation only enables the person in whose favour mutation has ordered to pay the land revenue.24. In Union of India's case, (referred herein supra), the Hon'ble Supreme Court held that in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any of the case set up by the defendants 19/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015would not be a ground to grant relief to the plaintiff.25. Applying the ratio laid down by the Hon'ble Supreme Court in the above cases to the facts of the present case, it is clear that the defendant who has made a counterclaim seeking declaration of 1800 sq.ft in his favour has not adduced sufficient or satisfactory evidence to discharge the burden on him. The mere production of revenue records in his name would be of no avail, since as held by the Hon'ble Supreme Court, mutation of the defendant's name in the revenue records would not create any title in his favour. The defendant has miserably failed to prove exclusive ownership of 1800 sq.ft. and his counterclaim is totally silent about even tracing of title or manner of acquiring right to the said extent of 1800 sq.ft. 26. I have already found that the entire property was comprised in Door No.23, East Mada Street, Velacherry, Chennai-42 and from the reports of the Advocate Commissioner and revenue records produced by the plaintiffs, it is clear that the actual extent available is much more than what has been mentioned in Ex.P-2, partition deed dated. Applying the well 20/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015settled principle that boundaries will prevail over extent, there is no difficulty in holding that entire extent of 8289.93 sq.ft is comprised within four definite boundaries and consequently, being joint property is available for partition with the plaintiffs and the defendant being equally entitled to 1/5th share. 27. At the same time, as already discussed, the defendant has established he has put up the entire construction in portion of land measuring approximately 1800 sq.ft. Though the plaintiffs claim to have contributed equally for construction of atleast the ground floor and having admitted that the first and second floors were put up only by the defendant, the plaintiffs have not been successful in substantiating their claim of equal contribution for putting up even the ground floor. Therefore, I hold that the entire superstructure assessed to tax at Door No.23/1, East Mada Street comprising of ground and first and second floors belongs absolutely to the defendant, making it abundantly clear that the land over which the said construction has been put up belongs to the plaintiffs and the defendant jointly and equally.21/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 201528. Equities can always be worked out at the time of actual division of the property by metes and bounds. It is always open to the defendant to seek allotment of 1800 sq.ft of land towards his share, so that, he can secure the construction put up by him at his costs, at the time of final decree proceedings. Alternatively, it is also open to the plaintiffs to pay the cost of construction of the superstructure, in the event of the plaintiffs being allotted the land over which the superstructure has been constructed by the defendant. It is just and proper that all these issues of actual division can be worked out at the time of final decree proceedings. 29. Issue Nos 4 & 5:Insofar as Issue Nos.4 and 5, the plaintiffs have sought for permanent injunction to restrain the defendant from alienating Item No.1 of the plaint schedule property. In view of the findings to Issue Nos 1 to 3, the plaintiffs also being co-owners of the land available in item No.1 of the plaint schedule property, the defendant has no exclusive right to deal with the same and consequently, the plaintiffs are entitled to permanent injunction as prayed for.22/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 201530. The defendant has sought for permanent injunction to restrain the plaintiffs from disturbing and interfering with his schedule 'B' to the counterclaim property. I have already found the defendant has put up the superstructure at his costs and he is entitled to the superstructure. However, the land on which the superstructure is put up belongs to the plaintiffs and defendant jointly. In view of the above, the defendant shall be entitled to a permanent injunction restraining the plaintiffs from disturbing his peaceful possession and enjoyment of the superstructure available in Schedule 'B' of the counterclaim property, subject to the outcome of the final decree proceedings to be taken by either of the parties pursuant to the final decree being passed in the present suit. 31. In the result, the suit is decreed in the manner following:(a) The plaintiffs and the defendant shall be entitled to 1/5th share each in Item No.1, land alone viz., measuring 8289.93 sq.ft, and 1/5th share each in Item No.2 of the plaint schedule suit properties. (b) Permanent injunction restraining the defendant, his legal heirs, 23/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015legal representatives, servants and agents from alienating the land measuring 8289.93 sq.ft in item No.1 of the plaint schedule property.32. Counterclaim is partly decreed as hereunder: (a) The defendant is declared to be the owner of the superstructure alone bearing Door No.23/1, East Mada Street, Velachery, Chennai -42. (b) The defendant shall be entitled to permanent injunction restraining the plaintiffs their agents, servants, power agents or any person claiming through them from disturbing or interfering the defendant's peaceful possession and enjoyment of the superstructure bearing Door No.23/1, East Mada Street, Velachery, Chennai -42 subject to final decree proceedings that may be taken pursuant to this preliminary decree. The parties shall bear their respective costs. 07.06.2024Index : Yes/NoSpeaking/Non-speaking orderrkp24/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015Witnesses examined on the side of the plaintiff:P.W.1. - N.V.BoopalanP.W.2 - V.Murali SundaramExhibits produced on the side of the plaintiff:S.No.ExhibitsDate Description 1.P-114.03.1904The certified copy of Sale deed dated 14.03.1904 executed in favour of my grandfather Narayanasamy Naicker 2.P-221.05.1977The certified copy of Partition deed dated 21.05.1977 between plaintiffs and defendant along with their father. 3.P-3--The photo copy of Death Certificate of N.Venkatesan.4P-4--The photo copy of Legal Heir Certificate of N.Venkatesan.5P-5 02.08.2014The served copy of Legal notice issued by the defendant's advocate to plaintiffs.6P-611.08.2014The office copy of reply notice issued by the plaintiffs' advocate to the defendant advocate.7P-719.02.2015The served copy of Rejoinder notice by plaintiffs to defendant8P-809.03.2015The office copy of reply dated 09.03.2015 to rejoinder notice by plaintiffs to defendant.9P-9--The photocopy of Natham Patta issued in the name of plaintiffs and defendant10P-10--The photocopy of Demand notice under U.L.T for S.No.180/2 & 292/1 & 3.11P-11--The photocopy of Tax payment Challan.12P-12--The photocopy of Patta Pass Book bearing Patta No.97 in the name of Venkatesan.13P-1317.11.1977The certified copy of Rectification Deed 25/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015registered as Doc. No.3250 of 1977. Witnesses examined on the side of the defendants:D.W.1 -V.GajenderanDocuments marked on the side of the defendants:S.No.ExhibitsDate Description 1.D-121.05.1977The photocopy of Partition Deed dated 21.05.1977 between plaintiff's and the defendant. 2.D-217.11.1977The photocopy of Rectification Deed dated 17.11.19773.D-3--The photo copy of Death Certificate of defendant's father Mr.Venkatesan4D-4--The photocopy of Legal Heir Certificate of Mr.Venkatesan.5D-5 28.04.2000The photocopy of general Power of Attorney.(The learned counsel for the plaintiff objected to mark this document since this document is a photocopy. Hence Ex.D5 is marked with objection, subject to admittedly, proof and relevancy)6D-631.03.2001The photocopy of Financial Statement dated 31.03.2001 issued by A.Krishnamoorthy to the defendant with annexure. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.) (The learned counsel for the plaintiff objected to mark this document stating that signature of Chartered Accountant is not found in the statement of computation of total income. Hence Ex.D6 is marked with objection, subject to admittedly, proof and relevancy)26/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 20157D-709.10.2001The photocopy of Deed of Cancellation of General Power of Attorney.(The learned counsel for the plaintiff objected to mark this document since this document is a photocopy. Hence Ex.D7 is marked with objection, subject to admittedly, proof and relevancy.)8D-803.05.2007The photocopy of Sanction Order of temporary advance of GPF for Rs.68,550/- dated 03.05.2007 issued by Tahsildar, Ponneri in the defendant's name. (Original produced, verified, compared and returned tot he counsel with direction to produce the same as and when required.)9D-912.11.2007The photocopy of Loan Account Passbook dated 12.11.2007 issued by Thyagarayanagar Co-operative bank, Velachery in the name of the defendant. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required)10D-1021.11.2007The photocopy of House Warming Invitation (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)11D-1122.11.2007The photocopy of Loan sanction letter issued by LIC Housing Finance in the name of defendant and his wife Mahalakshmi. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required. 12D-1210.04.2008The photocopy of Loan sanction letter dated 10.04.2008 issued by LIC Housing Finance in the name of defendant and his wife Mahalakshmi. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required)13D-1302.05.2008The photocopy of Memorandum of Deposit of 27/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015Title Deed for Rs.2,50,000/- dated 02.05.2008 executed by the defendant 14D-14--The Construction Agreement executed by K.Kesavan in favour of defendant.15D-15--The (5th and 6th sheet of a booklet) receipt of cash payment executed by K.Kesavan in favour of defendant.(The learned counsel for plaintiff objected to mark the document stating that a booklet is produced as against two loose sheets for which permission was sought for receiving the document. One booklet is produced and in this, photocopy of 5th and 6th sheet already produced. Hence 5th and 6th sheet of this booklet is marked as Ex.D15 with objection subject to admissibility, proof and relevancy.)16D-1603.06.2009The photocopy of Memorandum of Deposit of Title Deed for Rs.2,80,000/- executed by defendant in the name of LIC Housing Finance.(The learned counsel for the plaintiff objected to mark this document since this document is a photocopy. Hence Ex.D16 is marked with objection, subject to admissibility, proof and relevancy.)17D-1713.11.2009The property Tax Collection Receipt for period I-2009/2010 & II-2009/2010 issued by Corporation of Chennai in the name of defendant.18D-1810.11.2009The Property Tax Assessment Order issued by Corporation of Chennai in the name of defendant.19D-19--The Agreement Letter issued by P.Sivakumar.20D-2001.03.2010The Loan Account Passbook issued by Thyagarayanagar Co-operative Bank, Velacherry in the name of defendant.21D-2102.11.2010The Receipt of payment of Water and Sewerage Tax for the period I & II -2101 issued by CMWSSB dated 02.11.2010.22D-2201.11.2012The Letter from Pay and Accounts office to the 28/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015defendant.23D-2323.07.2013The Loan Sanction Letter issued by LIC Housing Limited in favour of defendant and his son Jayakrishnan.24D-2419.08.2013The photocopy of Memorandum of Deposit of Title Deed for Rs.8,00,000/- dated 19.08.2013 executed by defendant in the name of LIC Housing Finance. (The learned counsel for the plaintiff objected to mark this document since this document is a photocopy. Hence Ex.D24 is marked with objection, subject to admissibility, proof and relevancy.)25D-2518.01.2014The Receipt of payment of Water and Sewerage Tax for the period I & II -2012, I & II -2013 issued by CMWSSB.26D-2617.08.2013The Agreement letter dated 17.08.2013 executed by C.R.Rajan in favour of defendant.(The learned counsel for the plaintiff objected to mark this document stating that this document does not contain the 3rd, 4th and 5th sheets of document No.36 produced along with written statement as phtocopies and hence this document is incomplete. Hence Ex.D26 marked with objections admissibility, proof and relevancy.)27D-2725.02.2014The Property Tax Collection Receipt for period I & II -2013/2014 issued by Corporation of Chennai in the name of defendant.28D-2827.06.2014The New Property Tax Assessment Order issued by Corporation of Chennai in the name of defendant. 29D-2910.07.2014The Property Tax Collection Receipt for period I & II -2014/2015 issued by Corporation of Chennai in the name of defendant.30D-30--(Series) are the photocopy of Saving Bank Pass Book in Account No.30044691287 for the period from 04.09.2013 to 02.12.2013 & 25.06.2014 to 10.07.2015 issued by State Bank 29/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015of India, Velachery in the name of defendant. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)31D-31--The photocopy of Bank Pass Book in Account No.47488302-0 for the period from 29.06.2006 to 01.09.2007 issued by Indian Bank, Velachery in the name of defendant. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)32D-32--The photocopy of Bank Pass Book in Account No.474883020 for the period from 04.09.2007 to 23.09.2008 issued by Indian Bank, Velachery in the name of defendant and his son Jaykrishnan. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)33D-33--The photocopy of Bank Pass Book in Account No.474883020 for the period from 10.10.2008 to 08.04.2011 issued by Indian Bank, Velachery in the name of defendant and his son Jayakrishnan.(Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)34D-34--The photocopy of Bank Pass Book in Account No.474883020 for the period from 10.01.2011 to 06.09.2013 issued by Indian Bank, Velacherry in the name of defendant and his son Jayakrishnan. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)35D-35--The photocopy of Bank Pass Book in Account No.474883020 for the period from 12.09.2013 to 07.07.2015 issued by Indian Bank, Velacherry in the name of defendant and his son Jayakrishanan. 30/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015(Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)36D-36--The Property Tax Demand Card issued by Corporation of Chennai, Zone -XIII.37D-37--The Electricity Board Consumption Card issued in the name of defendant.38D-3824.11.2009The Original Electricity Consumption Receipt dated 24.11.2009.Witnesses examined on the side of the Court:C.W.1 – J.A. PrabakaranDocuments marked on the side of the Court:S.No.ExhibitsDate Description 1.C-1--Advocate Commissioner's report along with annexure is Ex.C1 (Series). (The learned counsel for the defendant objected to mark. Hence Ex.C1 (Series) is marked with objection.)2.C-2--Additional Commissioner's report with Engineer's report is Ex.C2 (Series). (The learned counsel for he defendant objected to mark. Hence Ex.C2 (series) is marked with objection.)07.06.2024rkpP.B.BALAJI,J.31/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015rkpCS. No.56 of 201507.06.202432/32

C.S. No.56 of 2015N.Venkatesan, he having become entitled to the same under a registered partition deed dated 21.05.1977. Though the extent mentioned in the registered partition deed was 2 grounds 2209 sq.fts, the actual extent comprised in S.No.124/1, Velachery Village, which was subject matter of the partition deed was 8285.5 sq.fts. 2.2. According to the plaintiffs, they are in joint possession and enjoyment of both Item Nos.1 and 2 of the suit properties and being the original legal heirs of Late N.Venkatesan, who died intestate on 07.02.1986, the plaintiffs are entitled to equal share namely 1/5th each in Item No.1 as well as Item No.2 of the plaint schedule properties.2.3. The plaintiffs also contend that in Item No.1 of plaint schedule property, the plaintiffs and the defendant put up superstructure in the Eastern side, contributing equally and thereafter, the defendant, the youngest brother was permitted to reside there until the partition takes place. However, the defendant let out some portions of the property to tenants without the consent and knowledge of the plaintiffs and has been enjoying 3/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015the monthly rents without sharing the same to the plaintiffs. When the plaintiffs questioned the same, the defendant set up exclusive title on himself for the constructed portion. The defendant issued a notice on 02.08.2014 for partition to which the plaintiffs sent a reply notice on 11.08.2014. On the strength of these averments and allegations, the plaintiffs filed the suit.3. The brief facts set out by the defendant by way of written statement-cum-counter claim are as follows:3.1. The defendant admits relationship between the parties, however the defendant denies that the Item No.1 of the plaint schedule property was measuring 8285.5 sq.ft. A portion of land measuring 1800 sq.ft comprised in S.No.124/1 belonged exclusively to the defendant and the plaintiffs have no manner of right, title or interest over the same. The plaintiffs are entitled only to partition in respect of 7009 sq.ft comprised in S.No.124/1 and not 8285.5 sq.ft. 3.2. The defendant denies the claim of the plaintiffs that they have also contributed for construction of the building in the Eastern portion of 4/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015the suit property viz., Item No.1 of the plaint schedule property. The defendant claims to be in continuous, uninterrupted and exclusive possession of 1800 sq.ft, compounded on all four sides. The defendant has also entered into a development agreement with a contractor on 22.07.2007 and has constructed the entire building, comprising of first and second floors with asbestos roofing at a total cost of Rs.5,90,000/-, for which he has also availed of loans. 3.3.According to the defendant, the said 1800 sq.ft was neither joint family property nor individual property of his father, late N.Venkatesan, but, it exclusively belonged to the defendant. The defendant, therefore filed a counter claim along with the written statement to declare 1800 sq.ft comprising of ground, first and second floors at Door No.23/1, East Mada Street, Velacherry, Chennai – 600 042 as his property besides seeking for partition in respect of his 1/5th share in the 7009 sq.ft situate on the Western side of the defendant's property and Item No.2 measuring 979 sq.ft comprised in S.No.292, New S.No.292/1, Velacherry Bye Pass Road, Velacherry, Chennai - 42. 5/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 20154. To the counter claim filed by the defendant, the plaintiffs filed a reply statement which is summarised hereunder:4.1. The plaintiffs specifically denied the claim of the defendant that he was exclusively entitled to 1800 sq.ft and that the plaintiffs were never in possession of the same. According to the plaintiffs, the 1800 sq.ft is comprised in S.No.124/1 and forms part of the registered partition deed dated 21.05.1977, alloted to the father, Venkatesan. Even according to the defendant, the total extent of property measures 8479 sq.ft and if 1800 sq.ft is taken away, the remaining extent would only be 6679 sq.ft which would not tally with the defendant's claim of 7009 sq.ft, the extent available under the registered partition deed. The plaintiffs have equally contributed for construction of the ground floor. The plaintiffs contend that they orally objected for the construction of the first and second floors over and above the ground floor. 4.2.According to the plaintiffs, the said 1800 sq.ft for which counter claim has been made was in possession of the father of the plaintiffs and 6/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015defendant till his demise and thereafter, it has been in joint possession of the plaintiffs and defendant. The plaintiffs never accepted the defendant's title and only for the first time by way of lawyer's notice on 02.08.2014, the defendant claimed exclusive possession in respect of 1923 sq.ft. The occupation of the defendant is only permissive in nature and the defendant has deceived the plaintiffs who were under the bonafide belief that the entire property was common for everyone. The plaintiffs, therefore prayed for dismissal of the counter claim. 5. On 27.09.2018, this Court framed the following issues.“ (1) Whether the measurements and extent of item No.1 of the properties described in the Schedule to the plaint are correct?(2) Whether the properties described in item Nos.1 and 2 of the Schedule to the plaint are liable to be partitioned among the plaintiffs and the Defendant in five equal shares?(3) Whether the Defendant is entitled to a declaration of exclusive ownership of the properties described in Schedule B of the counter claim in the Written statement of the Defendant?(4) Whether the Plaintiffs are entitled to permanent injunction restraining the Defendant from alienating item No.1 of the properties described in the Schedule to the plaint? (5) Whether the Defendant is entitled to permanent injunction restraining the Plaintiffs from disturbing, interfering and trespassing into the properties described in the Schedule B of the counter claim in the Written Statement?(6) To what reliefs, if any, are the parties entitled?” 7/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 20156. The second plaintiff examined himself as P.W.1. The third plaintiff examined himself as P.W2 and marked Exhibits P1 to P13 on the side of the plaintiffs. On the side of the defendant, the defendant examined himself as D.W.1 and marked Exhibits D1 to D38. The Advocate Commissioner was examined as C.W.1 and his report was marked as Ex.C1 and his additional report was marked as Ex.C2. 7. I have heard Mr.S.Senthilnathan, learned counsel for the plaintiffs and Mr.T.Gowthaman, learned Senior Counsel for Mr.S.Santhan, learned counsel for the defendant.8. Issue Nos.1 to 3:- The relationship between the parties is not in dispute. Infact, even in respect of Item No.2 of the plaint schedule property, there is no dispute and the defendant agrees that the said item No.2 of the plaint schedule property is to be shared equally amongst the plaintiffs and the defendant and in fact, the defendant also admits that the plaintiffs are entitled to 1/5th share in item No.1, however his only objection is that the extent as mentioned in the 8/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015registered partition deed alone is available for partition and the additional extent of 1800 sq.ft available in S.No.124/1 belongs to him absolutely and over the said land, he has put up construction of ground, first and second floors out of his own funds and with the help of loans availed by him. 9. However according to the plaintiffs, the extent mentioned in the partition deed was incorrect and the actual extent available is 8289.93 sq.ft (initially mentioned as 8285.5 sq.ft and subsequently amended). The plaintiffs also claim that they have contributed equally for construction of the ground floor portion over the said 1800 sq.ft and admit that the defendant has put up construction of first and second floors, though without the consent of the plaintiffs. 10. Thus the questions that need to be answered are as to whether Item No.1 of the plaint schedule property measures 8289.93 sq.ft or only 7009 sq.ft as found in the registered partition deed and whether the extent of 1800 sq.ft claimed to be in exclusive possession and enjoyment of the defendant is his absolute entitlement or as to whether it is joint property in 9/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015respect of which also the plaintiffs are entitled to 1/5th share each.11.The plaintiffs as well as the defendant admit to the execution of registered partition deed dated 21.05.1977. In fact, the plaintiffs, the defendant and their father, late N.Venkatesan were parties to the said partition deed. The 'A' schedule property under the said registered partition deed was alloted to their father, N.Venkatesan which is also not disputed by either of the parties. The fact remains that the 'A' schedule property comprised in S.No.124/1, Velachery Village has been mentioned to be of an extent of 2 grounds and 2209 sq.ft. The plaintiffs have produced the certified copy of the registered partition deed dated 21.05.1977 as Ex.P2. Ex.P9 is the Natham Patta issued in the name of the plaintiffs and the defendant. Ex.P10, is the notice of Demand of Urban Land Tax served on the father of the plaintiffs, N.Venkatesan. Ex.P11 is the receipt for payment challan for item No.1 of the plaint schedule property, the said receipt has been issued in the name of their father, N.Venkatesan. Ex.P12 is the patta passbook bearing No.97 which is in the name of the father, N.Venkatesan. which is in respect of Item No.2 of the plaint schedule property. 10/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 201512.In all, the documents which are in the name of the father, N.Venkatesan, the property has been described is Door No.23, East Mada Street, Velachery, Chennai-42. Even in Ex.P2, partition deed the property allotted to the father, N.Venkatesan has been described as lands measuring 2 grounds 2209 sq.ft together with building standing thereon being bounded on the West by East Mada Street, East by Karunambigai Colony, North by Arjuna Naicker's vacant land and South by Pallipattu Ramachandra Naicker's vacant land. It is also seen from the partition deed that no other property in S.No.124/1, Velacherry Village was subject matter of the partition deed. 13.The specific case of the defendant is that the property available for partition amongst the plaintiffs and the defendant is only the said 2 grounds and 2209 sq.ft i.e., 7009 sq.ft and the 1800 sq.ft, situate on the Eastern side of the joint family property belongs to him absolutely. It is for this extent of 1800 sq.ft that the defendant has also made a counterclaim. However, except for pleading that he has been in exclusive and uninterrupted 11/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015possession for several decades, the defendant has not stated as to how he became entitled to the said extent of 1800 sq.ft. The defendant has not even pleaded adverse possession or ouster to stake a claim over the said 1800 sq.ft. Having filed a counter claim which is nothing but a plaint by itself, the defendant has to plead and prove his entitlement to the said 1800 sq.ft for becoming entitled to a decree in the counter claim. However, except for the mutation of records in respect of the building constructed over the 1800 sq.ft, I do not find a shred of evidence to establish right, title or interest in the 1800 sq.ft land in favour of the defendant. 14. According to the defendant, the said 1800 sq.ft is not the joint family property and did not even belong to the father, and that being the position, while entering into the deed of partition, one of the boundaries to schedule 'A' properties i.e., the property allotted to the father, N.Venkatesan, ought to have been mentioned as property of the defendant. However, there is no such mention of any property belonging to the defendant in the partition deed and more specifically in the schedule 'A' to the said partition deed, marked as Ex.P2. In fact, during cross examination, D.W.1 has 12/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015admitted that his father, the plaintiffs and the defendant jointly resided in Door No.23, East Mada Street, Velachery and item No.1 of the suit property is Door No.23, East Mada Street, Velachery. He also admitted that the construction, he put was only in Door No.23, East Mada Street and the Corporation assessed the new building as Door No.23/1, East Mada Street. Even in Ex.D10, which is the House Warming Ceremony Invitation, the defendant has mentioned the property address as only D.No.23, East Mada Street, Velacherry, Chennai -42. 15. Therefore, from the oral and documentary evidence available on record, it is abundantly clear that the property which was subject matter of partition in 1977 amongst the plaintiffs, defendant and their father, N.Venkatesan was only Door No.23, East Mada Street, Velacherry, Chennai-42. The schedule 'A' to the said partition deed, which is allotted to the father, N.Venkatesan, specifically mentions four boundaries to the said partition deed which have already been set out herein above. Therefore, the extent available within the said four boundaries is the actual extent available in S.No.124/1, (Door No.23, East Mada Street). 13/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 201516. Though the defendant claims title to the Eastern portion measuring 1800 sq.ft, except for producing proof of construction of the building and mutation of records in his name, the defendant has not been able to establish, by adducing any satisfactory evidence that the 1800 sq.ft on the Eastern side of the plaint schedule property belongs to him. The counter claim is totally silent as to how the defendant acquired title in and over the said 1800 sq.ft., except for passing reference in the counterclaim that the defendant has been in continuous, uninterrupted and exclusive possession and enjoyment of 1800 sq.ft for several decades. The said pleadings remains unsubstantiated even at the time of trial. 17.On the contrary, the revenue records in the name of the father, N.Venkatesan and subsequent to his demise, the joint names of the plaintiffs and the defendant would all clearly go to show that the property allotted to the father, N.Venkatesan, under the registered partition deed dated 21.05.1977, was only Door No.23, East Mada Street, Velachery, Chennai -42. No doubt, the schedule in the said partition deed mentions the extent as 14/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 20152 grounds 2209 sq.ft which works out to 7009 sq.ft. In fact the plaintiffs themselves mentioned the extent of item No.1 property as 8285.85 sq.ft in the plaint schedule item No.1, however they have taken out an Application in A.No.5284 of 2018 and amended the extent as 8289.93 sq.ft. It is the specific case of the plaintiffs that the extent of Door No.23, East Mada Street, Velachery, Chennai-42 was wrongly mentioned as 2 grounds & 2209 sq.ft. In 'A' schedule of the registered partition deed dated 21.05.1977. The learned counsel for the plaintiffs would state that boundaries would prevail over extent and therefore, the incorrect extent mentioned in the registered partition deed cannot be taken as correct when the actual extent available within the four boundaries was much more. 18. Per contra, the learned Senior Counsel appearing for the defendant and counter claimant submit that the plaintiffs cannot claim any additional area over and above what was mentioned in the partition deed and the plaintiffs have not been able to prove joint or constructive possession of the 1800 sq.ft and they have also miserably failed in proving contribution for construction of ground floor portion in the said 1800 sq.ft. He would 15/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015further contend that it was the defendant who ventured to issue the notice for partition first and therefore, it would clearly expose the avaricious attitude on the part of the plaintiffs to usurp the defendant's property as well.19. As already seen, D.W.1 admitted that the property in which he put up construction was only comprised in Door No.23, East Mada Street, Velachery, Chennai-42, even as late as, at the time of House Warming Ceremony, the defendant has voluntarily mentioned the Door Number only as Door No.23. Merely because the Corporation has assigned Door No.23/1 while assessing the property to tax in the name of the defendant, it would not bestow the defendant with title to the land over which the construction has been put up. No doubt, the plaintiffs are also not able to establish their claim of equal contribution for putting up construction of the ground floor. The entire building assessed to Tax at Door No.23/1, comprising of ground and two upper floors has only been assessed in the name of the defendant. The defendant has also produced voluminous documents to establish the fact that he has put up construction and got the building assessed in his name. Exhibits D17 & D18 are the property tax receipts and assessments 16/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015respectively. Similarly, Ex.D21 is receipt for payment of water and sewerage Tax issued by CMDA in the name of defendant. Exhibits D27 to D29, D36 issued by Corporation of Chennai are also in the name of the defendant only. Ex.D37 and Ex.D38, the Electricity Card and Consumption Receipt respectively. The defendant has also produced overwhelming documentary evidence to show that the entire construction was put up by the defendant out of his own funds and also from the funds availed of by way of housing loan, jewel loan etc. Though the plaintiffs' claim in the plaint as well as in the reply to the counterclaim that the ground floor was constructed out of the joint exercise of the plaintiffs and the defendant, the said claim remains on paper and has not been proved. 20. On the contrary, the defendant has established that he has put up the entire construction at his costs. However, the construction of the building by the defendant will not clothe him with any right in the land which admittedly belonged to the father. The defendant especially having filed a counterclaim has miserably failed to prove his entitlement in and over the 1800 sq.ft. 17/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015 21. The defendant, clearly, is attempting to take advantage of the incorrect extent mentioned in the Schedule 'A' to the partition deed dated 21.05.1977 in Ex.P2, coupled with the fact that he has put up construction in Eastern portion of the said property. However, even according to the defendant from the sketch filed along with the written statement and counter claim, the total extent of property excluding 1800 sq.ft. works out to 6446 sq.ft only, as against 7009 sq.ft which should have been available as per the registered partition deed and which is the case of the defendant himself. Therefore, the irrefutable conclusion is that the total extent of property available in Item No.1 is 8289.93 sq.ft including the 1800 sq.ft claimed by the defendant. The learned Advocate Commissioner who inspected the property has filed a report and also additional report which have been marked as Ex.C1 and C2 and the Advocate Commissioner also examined as C.W.1. In pursuance of the additional report setting out the extent as 8289.93, the plaintiffs have also amended the plaint to incorporate the said extent.18/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 201522. The learned counsel for the plaintiffs has also relied on the following decisions in support of his contentions:-(i) Sawarni Vs. Inder Kaur reported in, CDJ 1996 SC 607;(ii) Union of India and others Vs. Vasavi Co-op. Housing Society Limited & Others reported in, CDJ 2014 SC 006.(iii) Vidya Devi @ Vidya Vati (dead) by L.Rs. Vs. Prem Prakash reported in CDJ 1995 SC 383.23. In Sawarni's case, (referred herein supra), the Hon'ble Supreme Court held that mere mutation of name in the revenue records would not create or extinguish title and that it would not have any presumptive value on title as mutation only enables the person in whose favour mutation has ordered to pay the land revenue.24. In Union of India's case, (referred herein supra), the Hon'ble Supreme Court held that in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any of the case set up by the defendants 19/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015would not be a ground to grant relief to the plaintiff.25. Applying the ratio laid down by the Hon'ble Supreme Court in the above cases to the facts of the present case, it is clear that the defendant who has made a counterclaim seeking declaration of 1800 sq.ft in his favour has not adduced sufficient or satisfactory evidence to discharge the burden on him. The mere production of revenue records in his name would be of no avail, since as held by the Hon'ble Supreme Court, mutation of the defendant's name in the revenue records would not create any title in his favour. The defendant has miserably failed to prove exclusive ownership of 1800 sq.ft. and his counterclaim is totally silent about even tracing of title or manner of acquiring right to the said extent of 1800 sq.ft. 26. I have already found that the entire property was comprised in Door No.23, East Mada Street, Velacherry, Chennai-42 and from the reports of the Advocate Commissioner and revenue records produced by the plaintiffs, it is clear that the actual extent available is much more than what has been mentioned in Ex.P-2, partition deed dated. Applying the well 20/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015settled principle that boundaries will prevail over extent, there is no difficulty in holding that entire extent of 8289.93 sq.ft is comprised within four definite boundaries and consequently, being joint property is available for partition with the plaintiffs and the defendant being equally entitled to 1/5th share. 27. At the same time, as already discussed, the defendant has established he has put up the entire construction in portion of land measuring approximately 1800 sq.ft. Though the plaintiffs claim to have contributed equally for construction of atleast the ground floor and having admitted that the first and second floors were put up only by the defendant, the plaintiffs have not been successful in substantiating their claim of equal contribution for putting up even the ground floor. Therefore, I hold that the entire superstructure assessed to tax at Door No.23/1, East Mada Street comprising of ground and first and second floors belongs absolutely to the defendant, making it abundantly clear that the land over which the said construction has been put up belongs to the plaintiffs and the defendant jointly and equally.21/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 201528. Equities can always be worked out at the time of actual division of the property by metes and bounds. It is always open to the defendant to seek allotment of 1800 sq.ft of land towards his share, so that, he can secure the construction put up by him at his costs, at the time of final decree proceedings. Alternatively, it is also open to the plaintiffs to pay the cost of construction of the superstructure, in the event of the plaintiffs being allotted the land over which the superstructure has been constructed by the defendant. It is just and proper that all these issues of actual division can be worked out at the time of final decree proceedings. 29. Issue Nos 4 & 5:Insofar as Issue Nos.4 and 5, the plaintiffs have sought for permanent injunction to restrain the defendant from alienating Item No.1 of the plaint schedule property. In view of the findings to Issue Nos 1 to 3, the plaintiffs also being co-owners of the land available in item No.1 of the plaint schedule property, the defendant has no exclusive right to deal with the same and consequently, the plaintiffs are entitled to permanent injunction as prayed for.22/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 201530. The defendant has sought for permanent injunction to restrain the plaintiffs from disturbing and interfering with his schedule 'B' to the counterclaim property. I have already found the defendant has put up the superstructure at his costs and he is entitled to the superstructure. However, the land on which the superstructure is put up belongs to the plaintiffs and defendant jointly. In view of the above, the defendant shall be entitled to a permanent injunction restraining the plaintiffs from disturbing his peaceful possession and enjoyment of the superstructure available in Schedule 'B' of the counterclaim property, subject to the outcome of the final decree proceedings to be taken by either of the parties pursuant to the final decree being passed in the present suit. 31. In the result, the suit is decreed in the manner following:(a) The plaintiffs and the defendant shall be entitled to 1/5th share each in Item No.1, land alone viz., measuring 8289.93 sq.ft, and 1/5th share each in Item No.2 of the plaint schedule suit properties. (b) Permanent injunction restraining the defendant, his legal heirs, 23/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015legal representatives, servants and agents from alienating the land measuring 8289.93 sq.ft in item No.1 of the plaint schedule property.32. Counterclaim is partly decreed as hereunder: (a) The defendant is declared to be the owner of the superstructure alone bearing Door No.23/1, East Mada Street, Velachery, Chennai -42. (b) The defendant shall be entitled to permanent injunction restraining the plaintiffs their agents, servants, power agents or any person claiming through them from disturbing or interfering the defendant's peaceful possession and enjoyment of the superstructure bearing Door No.23/1, East Mada Street, Velachery, Chennai -42 subject to final decree proceedings that may be taken pursuant to this preliminary decree. The parties shall bear their respective costs. 07.06.2024Index : Yes/NoSpeaking/Non-speaking orderrkp24/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015Witnesses examined on the side of the plaintiff:P.W.1. - N.V.BoopalanP.W.2 - V.Murali SundaramExhibits produced on the side of the plaintiff:S.No.ExhibitsDate Description 1.P-114.03.1904The certified copy of Sale deed dated 14.03.1904 executed in favour of my grandfather Narayanasamy Naicker 2.P-221.05.1977The certified copy of Partition deed dated 21.05.1977 between plaintiffs and defendant along with their father. 3.P-3--The photo copy of Death Certificate of N.Venkatesan.4P-4--The photo copy of Legal Heir Certificate of N.Venkatesan.5P-5 02.08.2014The served copy of Legal notice issued by the defendant's advocate to plaintiffs.6P-611.08.2014The office copy of reply notice issued by the plaintiffs' advocate to the defendant advocate.7P-719.02.2015The served copy of Rejoinder notice by plaintiffs to defendant8P-809.03.2015The office copy of reply dated 09.03.2015 to rejoinder notice by plaintiffs to defendant.9P-9--The photocopy of Natham Patta issued in the name of plaintiffs and defendant10P-10--The photocopy of Demand notice under U.L.T for S.No.180/2 & 292/1 & 3.11P-11--The photocopy of Tax payment Challan.12P-12--The photocopy of Patta Pass Book bearing Patta No.97 in the name of Venkatesan.13P-1317.11.1977The certified copy of Rectification Deed 25/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015registered as Doc. No.3250 of 1977. Witnesses examined on the side of the defendants:D.W.1 -V.GajenderanDocuments marked on the side of the defendants:S.No.ExhibitsDate Description 1.D-121.05.1977The photocopy of Partition Deed dated 21.05.1977 between plaintiff's and the defendant. 2.D-217.11.1977The photocopy of Rectification Deed dated 17.11.19773.D-3--The photo copy of Death Certificate of defendant's father Mr.Venkatesan4D-4--The photocopy of Legal Heir Certificate of Mr.Venkatesan.5D-5 28.04.2000The photocopy of general Power of Attorney.(The learned counsel for the plaintiff objected to mark this document since this document is a photocopy. Hence Ex.D5 is marked with objection, subject to admittedly, proof and relevancy)6D-631.03.2001The photocopy of Financial Statement dated 31.03.2001 issued by A.Krishnamoorthy to the defendant with annexure. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.) (The learned counsel for the plaintiff objected to mark this document stating that signature of Chartered Accountant is not found in the statement of computation of total income. Hence Ex.D6 is marked with objection, subject to admittedly, proof and relevancy)26/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 20157D-709.10.2001The photocopy of Deed of Cancellation of General Power of Attorney.(The learned counsel for the plaintiff objected to mark this document since this document is a photocopy. Hence Ex.D7 is marked with objection, subject to admittedly, proof and relevancy.)8D-803.05.2007The photocopy of Sanction Order of temporary advance of GPF for Rs.68,550/- dated 03.05.2007 issued by Tahsildar, Ponneri in the defendant's name. (Original produced, verified, compared and returned tot he counsel with direction to produce the same as and when required.)9D-912.11.2007The photocopy of Loan Account Passbook dated 12.11.2007 issued by Thyagarayanagar Co-operative bank, Velachery in the name of the defendant. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required)10D-1021.11.2007The photocopy of House Warming Invitation (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)11D-1122.11.2007The photocopy of Loan sanction letter issued by LIC Housing Finance in the name of defendant and his wife Mahalakshmi. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required. 12D-1210.04.2008The photocopy of Loan sanction letter dated 10.04.2008 issued by LIC Housing Finance in the name of defendant and his wife Mahalakshmi. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required)13D-1302.05.2008The photocopy of Memorandum of Deposit of 27/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015Title Deed for Rs.2,50,000/- dated 02.05.2008 executed by the defendant 14D-14--The Construction Agreement executed by K.Kesavan in favour of defendant.15D-15--The (5th and 6th sheet of a booklet) receipt of cash payment executed by K.Kesavan in favour of defendant.(The learned counsel for plaintiff objected to mark the document stating that a booklet is produced as against two loose sheets for which permission was sought for receiving the document. One booklet is produced and in this, photocopy of 5th and 6th sheet already produced. Hence 5th and 6th sheet of this booklet is marked as Ex.D15 with objection subject to admissibility, proof and relevancy.)16D-1603.06.2009The photocopy of Memorandum of Deposit of Title Deed for Rs.2,80,000/- executed by defendant in the name of LIC Housing Finance.(The learned counsel for the plaintiff objected to mark this document since this document is a photocopy. Hence Ex.D16 is marked with objection, subject to admissibility, proof and relevancy.)17D-1713.11.2009The property Tax Collection Receipt for period I-2009/2010 & II-2009/2010 issued by Corporation of Chennai in the name of defendant.18D-1810.11.2009The Property Tax Assessment Order issued by Corporation of Chennai in the name of defendant.19D-19--The Agreement Letter issued by P.Sivakumar.20D-2001.03.2010The Loan Account Passbook issued by Thyagarayanagar Co-operative Bank, Velacherry in the name of defendant.21D-2102.11.2010The Receipt of payment of Water and Sewerage Tax for the period I & II -2101 issued by CMWSSB dated 02.11.2010.22D-2201.11.2012The Letter from Pay and Accounts office to the 28/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015defendant.23D-2323.07.2013The Loan Sanction Letter issued by LIC Housing Limited in favour of defendant and his son Jayakrishnan.24D-2419.08.2013The photocopy of Memorandum of Deposit of Title Deed for Rs.8,00,000/- dated 19.08.2013 executed by defendant in the name of LIC Housing Finance. (The learned counsel for the plaintiff objected to mark this document since this document is a photocopy. Hence Ex.D24 is marked with objection, subject to admissibility, proof and relevancy.)25D-2518.01.2014The Receipt of payment of Water and Sewerage Tax for the period I & II -2012, I & II -2013 issued by CMWSSB.26D-2617.08.2013The Agreement letter dated 17.08.2013 executed by C.R.Rajan in favour of defendant.(The learned counsel for the plaintiff objected to mark this document stating that this document does not contain the 3rd, 4th and 5th sheets of document No.36 produced along with written statement as phtocopies and hence this document is incomplete. Hence Ex.D26 marked with objections admissibility, proof and relevancy.)27D-2725.02.2014The Property Tax Collection Receipt for period I & II -2013/2014 issued by Corporation of Chennai in the name of defendant.28D-2827.06.2014The New Property Tax Assessment Order issued by Corporation of Chennai in the name of defendant. 29D-2910.07.2014The Property Tax Collection Receipt for period I & II -2014/2015 issued by Corporation of Chennai in the name of defendant.30D-30--(Series) are the photocopy of Saving Bank Pass Book in Account No.30044691287 for the period from 04.09.2013 to 02.12.2013 & 25.06.2014 to 10.07.2015 issued by State Bank 29/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015of India, Velachery in the name of defendant. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)31D-31--The photocopy of Bank Pass Book in Account No.47488302-0 for the period from 29.06.2006 to 01.09.2007 issued by Indian Bank, Velachery in the name of defendant. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)32D-32--The photocopy of Bank Pass Book in Account No.474883020 for the period from 04.09.2007 to 23.09.2008 issued by Indian Bank, Velachery in the name of defendant and his son Jaykrishnan. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)33D-33--The photocopy of Bank Pass Book in Account No.474883020 for the period from 10.10.2008 to 08.04.2011 issued by Indian Bank, Velachery in the name of defendant and his son Jayakrishnan.(Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)34D-34--The photocopy of Bank Pass Book in Account No.474883020 for the period from 10.01.2011 to 06.09.2013 issued by Indian Bank, Velacherry in the name of defendant and his son Jayakrishnan. (Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)35D-35--The photocopy of Bank Pass Book in Account No.474883020 for the period from 12.09.2013 to 07.07.2015 issued by Indian Bank, Velacherry in the name of defendant and his son Jayakrishanan. 30/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015(Original produced, verified, compared and returned to the counsel with direction to produce the same as and when required.)36D-36--The Property Tax Demand Card issued by Corporation of Chennai, Zone -XIII.37D-37--The Electricity Board Consumption Card issued in the name of defendant.38D-3824.11.2009The Original Electricity Consumption Receipt dated 24.11.2009.Witnesses examined on the side of the Court:C.W.1 – J.A. PrabakaranDocuments marked on the side of the Court:S.No.ExhibitsDate Description 1.C-1--Advocate Commissioner's report along with annexure is Ex.C1 (Series). (The learned counsel for the defendant objected to mark. Hence Ex.C1 (Series) is marked with objection.)2.C-2--Additional Commissioner's report with Engineer's report is Ex.C2 (Series). (The learned counsel for he defendant objected to mark. Hence Ex.C2 (series) is marked with objection.)07.06.2024rkpP.B.BALAJI,J.31/32 https://www.mhc.tn.gov.in/judis C.S. No.56 of 2015rkpCS. No.56 of 201507.06.202432/32