High Court · 2025

S.A.No.565 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.11.2025 CORAMTHE HONOURABLE MRS.JUSTICE R. KALAIMATHIS.A.No.565 of 2025and C.M.P.No.19071 of 2025Venkidusamy Naicker @ Chinnappa Naicker (Died)1. Velusamy @ Raju Lakshmiammal (died)2. Rukmani3. Thayar4. Sasthiri5. Amsaveni ...Appellants/DefendantsVs.Arumugavelpillai (Died)P.Murugesan (Died)1. M.Vishnukarthikeyan2. M.Gowtham3. A.Niraimadhi4. P.Rathinam5. M. Parvathavarthini ...Respondents/PlaintiffsPRAYER:- This Second Appeal is filed under Section 100 of Code of Civil Procedure, 1908, to set aside the judgment and decree passed in A.S.No.30 of 2023 on the file of Sub Court, Udumalpet, dated 27.08.2024, modifying the judgment and decree in O.S.No.303 of 2005 on the file of District Munsif 1/11 https://www.mhc.tn.gov.in/judis S.A.No.565 of 2025Court, Udumalpet dated 03.10.2023.For Appellants :Ms.Hema SampathSenior Counselfor Mr.B.KumarasamyFor Respondents : Mr.P.ValliappanSenior Counselfor Mr.K.S.Karthick RajaJUDGMENTThis Second Appeal is preferred by the defendants against the judgment and decree dated 27.08.2024 passed in A.S.No.30 of 2023 by the Sub Court, Udumalpet.2. Parties are indicated herein as per their litigative status and rankings before the Trial Court.3. According to the plaintiffs, the properties (A and B schedule properties shown in the plaint) originally belonged to one Arumugam Pillai, who is the paternal grandfather of the 1st plaintiff. After the death of the Arumugam Pillai, the suit properties came to the hands of his son Muthusamy Pillai, who is the father of the 1st plaintiff herein. After the death of Muthusamy Pillai, the 1st plaintiff has become the absolute owner of the suit properties and he was in peaceful possession and enjoyment of the suit 2/11 https://www.mhc.tn.gov.in/judis S.A.No.565 of 2025properties. On 23.03.2007, the plaintiffs no.2 to 4 purchased the suit properties from the 1st plaintiff through registered sale deed and pursuant to the same, plaintiffs no.2 to 4 have been in possession and enjoyment of the suit properties. 3.1. Revenue records have been mutated and the suit properties stand in the name of purchasers namely, plaintiffs no.2 to 4. The defendants were the farm labourers worked under the 1st plaintiff to look after the land. The 1st defendant is the father of the 2nd defendant. Both resided in the farm workers quarters in the suit 'B' schedule property. The defendants and their family members were doing agricultural work in the 'A' schedule property by staying in the 'B' schedule property. Due to some unwanted activities, the defendants drew dissatisfaction of the 1st plaintiff, they were asked to vacate 'B' Schedule property and to quit work. The defendants have no right over the suit property. Tax assessment and EB service connections were also changed in the name of the purchasers.3.2. On 02.06.2005, when the 1st plaintiff entered into the suit 'A' schedule property, the defendants attempted to prevent him from entering into the 'A' schedule property. Hence the suit was filed by the 1st plaintiff.3/11 https://www.mhc.tn.gov.in/judis S.A.No.565 of 20253.3. During the pendency of the suit, the 1st plaintiff died and the 5th plaintiff is the legal heir of the 1st plaintiff. After the death of the 2nd plaintiff, his legal heirs namely, plaintiffs no.6 and 7 were impleaded as legal heirs. The 1st defendant died during the pendency of the suit and defendants no.3 to 7 have been brought on record as legal heirs of the deceased 1st defendant. The 3rd defendant died during the pendency of the suit and his legal heirs defendants no.2, 4 to 7 have been brought on record. The defendants have no right over the suit property and they are not entitled the suit 'B' schedule property and they are entitled for damages for the unlawful occupation over the 'B' schedule properties. Hence this suit.4. Per contra, the defendants no.1 and 2 would contend that the 1st plaintiff, who was in possession of the suit properties as his only son is not correct. The suit properties are in actual possession and enjoyment of the defendants for the past several years, since the defendants are the cultivating tenants of the suit properties. The allegation that the defendants were farm labourers are totally false. There are farm houses and cattle sheds in the suit property and they were constructed by the defendants on their own costs. The defendants got every right to live in the suit property.4.1. The cause of action mentioned in the plaint is false. The 1st 4/11 https://www.mhc.tn.gov.in/judis S.A.No.565 of 2025defendant took the suit properties on 'waraam lease' from the 1st plaintiff and his mother several years before. The defendants dug three bore wells and installed submersible motor at their costs. The defendants own properties worth several lakhs and there were well placed in their life. But they have been termed as farm labourers by the plaintiffs. The plaintiffs no.2 to 4 though alleged to have purchased the properties, they are not in possession of the properties.5. Based on the divergent pleadings, the Trial Court framed the relevant issues. To substantiate the claim of the plaintiffs, on the plaintiff's side, 2nd plaintiff Murugesan has examined himself as P.W.1 and sixty-five documents have been marked. One Eswaran has been examined as P.W2 and through him three documents were marked (Ex.A66 to Ex.A68). Assistant Agriculture Officer and Assistant Engineer, Tamil Nadu Electricity Board, have been examined as P.W3 and P.W4 and through them Ex.X1 to Ex.X4 have been marked. The original sale deed dated 22.03.2007 executed by the 1st plaintiff in favour of plaintiffs no.2 to 4 is Ex.A1. Patta pass book in the name of the 1st plaintiff is Ex.A2. Sale deed dated 23.03.2007 in the name of 2nd plaintiff son is Ex.A3. Ex.A4 is the true copy of Adagal. Sale deed dated 23.03.2007 in the name of the 3rd plaintiff is Ex.A10. Patta pass book in the name of 2nd plaintiff is Ex.A12. House tax receipts in the name of 5/11 https://www.mhc.tn.gov.in/judis S.A.No.565 of 2025the 2nd Plaintiff (two in numbers) is Ex.A41 (series). On the side of the defendants, the 2nd defendant – Velusamy @ Raju has examined himself as D.W1 and eight documents have been marked. One Archunan has been examined as D.W2. The proceedings of the Tahsildar, Udumalpet dated 11.07.2012 is Ex.B4. Proceedings of Revenue Divisional Officer, Trichy is Ex.B5. 6. The Trial Court upon consideration of evidence and after hearing the arguments advanced by the learned counsels on either side concluded that the plaintiffs are entitled for the reliefs and decreed the suit in favour of the plaintiffs. 7. Aggrieved, the defendants preferred appeal before the Sub Court, Udumalpet in A.S.No.30 of 2023. Upon consideration of the case records, the First Appellate Court except the award of damages confirmed the other findings of the Trial Court and allowed the appeal in part. Aggrieved, the defendants have preferred this Second Appeal.8. P.W2 has filed his proof affidavit in line with the details of the plaint. During the pendency of the suit, 1st plaintiff has sold the properties to the plaintiffs no.2 to 4.6/11 https://www.mhc.tn.gov.in/judis S.A.No.565 of 20259. It is relevant to refer to the cross examination of D.W1 and the relevant portion is culled out and given herein under:''tHf;fhdJ V brl;oa{y; kw;Wk; gp brl;a{y; vd ,uz;L mapl;l brhj;Jf;fSf;F jhf;fy; bra;ag;gl;ls;sJ vd;why;. rupjhd;/ ,e;j ,uz;L mapl;l brhj;Jf;fSk; Mjpapy; MWKfnty;gps;is vd;gtUf;F g{u;tPftifapy; ghj;jpag;gl;l brhj;Jf;fs; vd;why;. rupjhd;/ MWKfnty;gps;is brhj;jpd; cupikahsu; vd;w Kiwapy; fle;j 2007k; Mz;L brhj;ij 2 Kjy; 4 thjpfSf;F tpw;gidbra;Jtpl;lh; vd;why;. rupjhd;/ MWKfnty;gps;is vd;gtUf;F mLj;J 2 Kjy; 4 thjpfs;jhd; brhj;jpd; cupikahsu;fs; vd;why;. rupjhd;/ 2 Kjy; 4 thjpfs; fpiuak;bgw;w fpiuaMtz';fs; bry;yhJ mjpy; cs;s thrf';fs; bry;yhJ vd jw;nghJtiu ehd; ve;j nky;eltof;ifa[k; vLf;ftpy;iy vd;why; rupjhd;/''10. From the above said details, it is pellucid that D.W1 is aware of the sale that took place in the year 2007. As regards the contention of the defendants, sale effected by the 1st plaintiff is hit by Section 52 of Transfer of Property Act, 1882. Section 52 of the Transfer of Property Act, can be invoked, if at all, if the right to immovable property is specifically in question, then there is a restriction to transfer the title. There is no dispute that the suit properties were originally owned by the 1st plaintiff. Therefore, the 1st plaintiff having no restrictions to sell, has sold the properties to plaintiffs no.2 and 4. 7/11 https://www.mhc.tn.gov.in/judis S.A.No.565 of 2025By virtue of the sale deed executed by the 1st plaintiff in favour of the plaintiffs no.2 to 4, at present they are the owners. Having purchased the properties from the 1st plaintiff, the plaintiffs no.2 to 4 have stepped into the shoes of the 1st plaintiff. In these circumstances, it should not lie in the mouth of the defendants, who do not have any right over the properties, that the suit is hit by the Section 52 of the Transfer of Property Act.11. The prime contention of the defendants is that they are cultivating tenants in the suit properties and therefore, the suit is barred under the Tamil Nadu Cultivating Tenants Protection Act, 1955. As per Section 101 of the Indian Evidence Act, 1872, one who pleads has to prove. When the defendants assert that they are cultivating tenants, then burden lies on them to prove the said fact by filing concrete document. No lease documents either executed by the 1st plaintiff before or after the sale by the plaintiffs no.2 to 4, have been marked by the defendants. When the defendants failed to prove that they are cultivating tenants then they do not have any right to be in possession of the suit property. The defendants have been termed as encroachers over the suit property and they are liable to be evicted. Based on the aforesaid details, the defendants are construed to be trespassers over the 'B' schedule property and they are bound to deliver the vacant possession of the same to the plaintiffs. Apart from the plaintiff's side 8/11 https://www.mhc.tn.gov.in/judis S.A.No.565 of 2025witnesses, even D.W2 would state that the suit properties are in possession of the plaintiff.12. The defendants have failed to prove their case that they are cultivating tenants and the defendants are trespassers in respect of 'B' schedule property. The suit is laid in the year 2005 and they have been squatting over the 'B' schedule property illegally for more than two decades. Based on the aforesaid observations and discussions, no doubt plaintiffs have proved their case and they are entitled for the relief of permanent injunction in respect of the 'A' schedule property and the defendants shall deliver the vacant possession of the property, more fully described in the schedule 'B' to the plaintiffs no.3, 4, 6 and 7. The First Appellant Court has concluded in favour of the plaintiffs in right perspective. This Court does not find any perversity or infirmity in the findings of the First Appellate Court. This Court does not find any good reasons to upset the findings of the First Appellate Court. No substantial questions of law arise for consideration.13. Above being the position, this Second Appeal stands dismissed. Sequel to this, judgment and decree granted by the Sub Court, Udumalpet, passed in A.S.No.30 of 2023 dated 27.08.2024 stands confirmed. There is no order as to costs. Consequently, connected Civil Miscellaneous Petition 9/11 https://www.mhc.tn.gov.in/judis S.A.No.565 of 2025stands closed. 04.11.2025Index:Yes/NoSpeaking/Non-speaking orderInternet:YesNeutral Citation:Yes/NoMacR.KALAIMATHI, J.macCopy to 1.The Sub Court, Udumalpet2.The District Munsif Court, Udumalpet10/11 https://www.mhc.tn.gov.in/judis S.A.No.565 of 2025S.A.No.565 of 2025and C.M.P.No.19071 of 2025 04.11.202511/11