Madras High Court
Ayyasamy vs Prithiviraj …
Author: R.Pongiappan
Bench: R.Pongiappan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on Pronounced on
11.04.2019 04.06.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
S.A.(MD) No.705 of 2009
1. Ayyasamy
2. Kubendirapandian
3. Kaaliappan … Appellants/Defendants
versus
Prithiviraj … Respondent/Plaintiff
Second Appeal filed under Section 100 of C.P.C. against the Judgment
and Decree dated 17.12.2008 in A.S.No.10 of 2008 on the file of the Sub-Court,
Sankarankoil, confirming the Judgment and Decree dated 27.09.2007 made in
O.S.No.174 of 2006 on the file of the Principal District Munsif Court, Sankarankoil.
For Appellants : Mr.F.X.Eugene
For Respondent : Mr.P.Senthur Pandian
JUDGMENT
The appellants are the defendants in A.S.No.10 of 2008 on the file of the Sub Court, Sankarankoil. The respondent/plaintiff filed a suit in O.S.No.174 of 2006 on the file of the Principal District Munsif Court, Sankarankoil, seeking the relief of declaration, declaring that the plaintiff is the absolute owner of the suit schedule property and also for the relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property.
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2. The learned Principal District Munsif, Sankarankoil, by Judgment and Decree, dated 27.09.2007, partly allowed the suit and declared that the plaintiff is the absolute owner in respect of the property, which is on the eastern side of south
-north compound wall, particularly after three feet from the said south-north wall. Further, the plaintiff is entitled to the second schedule of property measuring about 52 ½ feet in east-west and 22 ½ feet in south-north and consequently, to the said properties, injunction has also been granted in favour of the plaintiff.
3. Aggrieved over the said finding, the appellants filed an appeal before the Subordinate Judge, Sankarankoil in A.S.No.10 of 2008. The learned Subordinate Judge, Sankarankoil, by Judgment and Decree dated 17.12.2008, dismissed the appeal, confirming the findings arrived at by the learned Principal District Munsif, Sankarankoil. Feeling aggrieved over the same, the appellants/defendants are before this Court with this Second Appeal.
4. For the sake of convenience, the parties are referred to, as described before the Trial Court.
5. The averments made in the plaint, in short, read as under:
The plaintiff purchased the suit properties through a registered sale deed dated 08.09.2005 from one Srinivasan and Kanagaraj. After the purchase, patta has been changed in the name of the plaintiff. Ever since from the date of purchase, the plaintiff is in possession and enjoyment of the suit schedule property. In the plaint, the first schedule property has been described as A B C D and the second http://www.judis.nic.in schedule of property as E F G H. Except the plaintiff, nobody has any right over the suit schedule properties. In fact, the defendants' properties are situated 3 nearby to the plaint schedule properties, in earlier, the defendants attempted to purchase the suit property and offered a low sale price. Since the vendor of the plaintiff refused to sell the same in favour of the defendants, the defendants made a false claim over the suit schedule properties and also caused hindrance to the plaintiff's possession. Hence, the suit.
6. The averments made in the written statement filed by the first defendant, which was adopted by the 2nd and 3rd defendant.
The plaint schedule properties never belong to Srinivasan or Kanagaraj who are the vendors of the plaintiff. In fact, the said properties belong to one Periyakoppammal, wife of Venkatrama Naicker and Chinnakoppammal, wife of Ayyappa Naicker and the same was purchased by one Krishnasamy Naicker through a registered sale deed dated 17.03.1967 from the above said Periyakoppammal, for herself and also in the status of guardian for her two minor sons and also from the Chinnakoppammal for herself and also in the status of guardian for her one minor son. After the sale, possession was handed over to the purchaser. Ever since from the date of purchase, the said Krishnasamy Naicker had enjoyed the same as a sole owner. After the demise of said Krishnasamy, his adopted sons, namely, Rajagopal and Jeevanantham enjoyed the same and sold the same to the defendants through a registered sale deed, dated 04.10.1993, for a valuable consideration. After the purchase, the defendants have been enjoying the same by putting up a house in the first item of the suit schedule property. The defendants also obtained patta in S.No.822 for one portion of the suit mentioned schedule property. The defendants and his predecessor enjoyed the schedule mentioned http://www.judis.nic.in property without any objection from 17.03.1967. The defendants perfected the title of suit property by means of adverse possession. The alleged 4 vendors of the plaintiff, namely, Srinivasan and Kanagaraj, are the sons of one of the vendors, namely, Periyakoppammal, who sold the property to one Krishnasamy for herself and also in the status of guardian for the above said minor sons Srinivasan and Kanagaraj. Therefore, they have estopped from claiming the title over the suit schedule properties. No property is in existence in the field as per the measurement given by the plaintiff in the plaint. The alleged sale in favour of the plaintiff is a forged and created one. Therefore, the suit is liable for dismissal.
7. Based on the above pleadings, the learned Principal District Munsif, Sankarankoil, framed necessary issues and tried the suit.
8. Before the trial Court, on the side of the plaintiff, two witnesses have been examined as P.W.1 and P.W.2 and three documents were marked as Exs.A1 to A3. On the side of the defendants, two witnesses have been examined as D.W.1 and D.W.2 and 3 documents were marked as Exs.B1 to B3. Apart from that, report and plans submitted by the Advocate Commissioner were marked as Ex.C1 to C3.
9. Having considered all the materials placed on record, the learned Principal District Munsif, Sankarankoil, allowed the suit in part in favour of the plaintiff. The said finding was challenged by the defendants. But, the learned Subordinate Judge dismissed the appeal and confirmed the findings of the Principal District Munsif, Sankarankoil. Aggrieved over the same, the defendants filed this appeal.
http://www.judis.nic.in 10. At the time of admitting this appeal, this Court formulated the following substantial questions of law:
5
Whether the First Appellate Court is correct in applying the ratio of the Supreme Court Judgment reported in 2003 2 MLJ 160 (SC) is applicable to the first appeal as (in the absence of Cross Appeal or Cross Objections) the First Appellate Court has no jurisdiction to modify the decree of the trial Court?
11. The specific case of the plaintiff is that he purchased the suit schedule properties from one Srinivasan and Kanagaraj through Ex.A1-Sale deed dated 08.09.2005. On the other hand, the specific case of the defendants is that the suit schedule properties originally belong to one Periyakoppammal, wife of Venkatrama Naicker and Chinnakoppammal, wife of Ayyappa Naicker and the same has been purchased by one Krishnasamy Naicker through a registered sale deed dated 17.03.1967. The said sale deed (Ex.B1) had been executed by Periyakoppammal for herself and also in the status of guardian for her two minor sons and by Chinnakoppammal for herself and also in the status of guardian for her one minor son. After the death of the said Krishnasamy Naicker, his adopted sons, namely, Rajavel and Jeevanantham sold the same to the defendants through a registered sale deed dated 04.10.1993, which was marked as Ex.B2 before the trial Court. It is the further case of the defendants that the vendors of the plaintiff, namely, Srinivasan and Kanagaraj are the sons of one of the vendors, namely Periyakoppammal, who sold the property to one Krishnasamy.
12. Now, on going through Ex.B1, it is true that Periyakoppamal had sold the property on behalf of her two sons, namely, Srinivasan and Kanagaraj to one Krishnasamy Naciker.
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13. It is the contention of either side that the possession of the suit property was taken over by their respective purchasers on the date of purchase and thereafter, patta has also been changed in favour of them.
14. Before the trial Court, a copy of the patta, which stands in the name of the plaintiff dated 18.11.2005, was marked as Ex.A2. On the other hand, patta pertaining to a house, which was constructed by the defendants, was marked as Ex.B3.
15. Now, on going through Ex.A2, the new survey number assigned to the property purchased by the plaintiff was mentioned as 1395/22 and 1395/4. On the other hand, it appears from the entries found in Ex.B3, the property having by the defendants is in Survey No.1395/21.
16. In the said circumstances, it is relevant to see the report filed by the Advocate Commissioner before the trial Court.
17. An Advocate Commissioner was appointed by the learned Principal District Munsif, Sankarankoil, with a direction to measure the property with the help of surveyor. The measurement and the report filed by the Advocate Commissioner establish the fact that both Survey Nos.1395/4 and 1395/25 are the Government vacant sites, in which, two houses are constructed. Since it was mentioned by the Surveyor that a portion, in which, the house constructed by the plaintiff is available, belonging to Government. Hence, it is necessary to see the description of property purchased http://www.judis.nic.in by the plaintiff and the defendant. 7
18. As already stated, through Ex.A1, the plaintiff purchased the property from his vendor. The vendor has also gave evidence as P.W.2 in support of the plaintiff.
19. Now, on a perusal of Ex.A1, the description of property is mentioned as follows:
jgrpy;
bjd;fhrp gjpt[ khtl;lk; r';fud;nfhtpy; rhh;gjptfk; m/fhpry;Fsk; Cuhl;rp kd;w vy;iff;Fs;gl;lJk; i& m/fhpry;Fsk; fpuhkk; k$uh ,uhkyp';fg[uk; vd;w Myog;gl;o fpuhkj;jpy; ej;jk; g[y vz; 51 ek;ghpy; 6tJ thh;oy; cs;s kid epy';fs;/
1) fpHnky; bghJeilghijf;Fk; tlf;F fpHnky; bghJeilghijf;Fk; bjw;F ma;ahr;rhkp tifawh kid tPL tifawhf;fSf;Fk; fpHf;F/ fe;jrhkp ehaf;fh;?1 uhkr;re;jpuehaf;fh; tifawh?2 ,th;fs;
fl;ol';fSf;Fk; nkw;F/ ,k;khYf;Fs; fpHnky; mo 30 bjd;tly; mo 45f;F rJuo 1350 bfhz;l kid epyk;/
2) ma;ahr;rhkp tifawh kid tPL tifawhf;fSf;Fk; nkw;F/ i& ma;ahr;rhkp tifawh kid epyj;jpw;Fk; tlf;F fpHnky; bghJeilghijf;Fk; bjw;F/ bjd;tly; tz;og;ghijf;Fk; fpHf;F/ ,k;khYf;Fs; fpHnky; mo 55 bjd;tly; mo 22 ½ f;F rJu mo 1237/5 bfhz;l kid epyk;/ http://www.judis.nic.in 8
20. On the other hand, in Ex.B2, which is the sale deed standing in the name of the defendants, the description of the property is found as follows:
jgrpy;
1) ghisa';nfhl;il hpo fyp';fg;gl;o rg;o A fhpry;Fsk;
Cuhl;rpkd;w vy;iff;Fl;gl;lJk; FUtpFsk; Cuhl;rp xd;wpaj;ijr; rhh;e;Js;sJkhd ic& A fhpry;Fsk; fpuhkk; k$uh Myog;gl;o vd;w uhkyp';fg[uk; fpuhkj;jpy; ej;jk; rh;nt 51y; 6tJ thh;oy; ej;jk; rh;nt Ik;gj;jp xd;wpy; MwhtJ thh;oy; cs;s kid epyj;jpw;F khy;/ bghpa nfhg;gk;khs; ghf kidf;Fk; nkw;F/ fpHnky; bghJ eilghijf;Fk; tlf;F/ ic& bghpa nfhg;gk;khs; ghf kidf;Fk; ,jd; moapy; fz;l kid epyj;jpw;Fk; fpHf;F/ rd;dhrp Mrhhp tPl;ow;Fk; kidf;Fk; Klf;Ff;Fk; bjw;F/ ,k;khYf;Fs; fpHnky; bf$k; gj;Jf;F mo 30 Kg;gJ mof;F bjd;tly; bf$k; gjpide;J mo 45 ehw;gj;J Ie;J mof;F rJu mo 1350 Mapuj;jp Kd;D}w;wp Ik;gJ rJu mo kid epyKk;
2) ic& ej;jk; rh;nt 51y; 6tJ thh;oy; ej;jk; rh;nt 51y; Ik;gj;jp xd;wpy; MwhtJ thh;oy; cs;s kid epyj;jpw;F khy;/ ic& 1tJ mapl;l kid epyj;Jf;Fk; nkw;F/ fpHnky; bghJ eilghijf;Fk; tlf;F/ tz;og;ghijf;Fk; fpHf;F/ bghpanfhg;gk;khs; ghf kidf;Fk; bjw;F/ ,k;khYf;Fs; fpHnky; bf$k; 17 1-2 gjpndHiuf;F mo 52 1-2 Ik;gj;J ,uz;liu mof;F bjd;tly; bf$k; 7 1-2f;F VHiuf;F mo 22 1-2 ,Ugj;J ,uz;liu mof;F rJu mo 1181 1-4 Mapuj;J E}w;W vz;gj;J xd;nwfhy; rJu mo kid epyKk; jgrpy; tpguk; rhp/ ic& brhj;Jf;fspd; khh;bfl; fpiua kjpg;g[ U: 20.250 jhd;/ http://www.judis.nic.in 9
21. Now, on a comparative study of the description of property found in both sale deeds, it appears that the defendants purchased the property in two items which situate one by one. On the other hand, the recitals found in Ex.A1 also disclose that both A and B schedule property situate one by one. However, as per Ex.A1, the second item of the properties situates on the western side of the first schedule of property.
22. On the other hand, as per Ex.B1, the second schedule property also situate on the eastern side of the first item of the schedule property. In the said circumstances, now, on going through Exs.C1 and C3, the defendants constructed a house after encroaching the property owned by Government. Moreover, before the Trial Court, both the plaintiff and the defendants had not taken a stand that the defendants constructed a house in the Government Promboke land. In the said circumstances, the trial Court came to a conclusion that the plaintiff is entitled to the property situate on the eastern side of south-north wall, particularly, after three feet from the said wall. The First Appellate Court also confirmed the said finding and dismissed the appeal.
23. Now, the learned counsel appearing for the appellants would contend that the finding arrived at by the trial Court and the first Appellate Court is not in accordance with the properties purchased either by the plaintiff and the defendants since both the properties were purchased from the common ancestor. The ratio laid down by the Hon'ble Supreme Court in the case of Banarsi and others vs. Ram Phal reported in 2003 (2) MLJ 160 (SC), is not applicable to the facts of the present http://www.judis.nic.in case. But, the First Appellate Court, by applying the said ratio, allowed the appeal, by confirming the findings of the trial Court. 10
24. On the other hand, the learned counsel appearing for the plaintiff/respondent would contend that without any counter claim, now, the defendants are praying for setting aside the entire Judgment, rendered by the Trial Court and the First Appellate Court, which is not proper. Further, the learned counsel for the plaintiff/respondent added that even though the relief sought for by the plaintiff is a larger one, the trial Court allowed the suit after reducing the same to a smaller extent of 3 feet and accordingly, the plaintiff is not having any grievances.
25. It is true from the evidence of the plaintiff and the defendants, both of them purchased their respective properties from the common ancestors. Now, after measuring the entire properties, the trial Court extended the relief in favour of the plaintiff to the portion comparatively smaller than the property purchased by him through Ex.A1. The first appellate Court has also confirmed the same.
26. Now, on going through the Judgment of our Hon'ble Apex Court in the case of Banarsi and others vs. Ram Phal reported in 2003 (2) MLJ 160 (SC), it was held as follows:
“That in the absence of cross appeal preferred or cross- objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for http://www.judis.nic.in specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained 11 the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection.”
27. Applying the said ratio to the facts and circumstances of the case, in this case also, after the concurrent Judgment, the plaintiff/respondent has not filed an appeal or cross objection.
28. The respondent/Plaintiff has not filed any cross appeal or cross objection in respect of entire relief which was prayed in the suit. However, at the time of disposing the appeal, the First Appellate Court has not modified the decree in the manner in which it has done. While at the time of disposing the appeal, the First Appellate Court entirely accepted the findings given by the trial Court and then, dismissed the appeal. But, in a case referred before the Honourable Apex Court, the First Appellate Court modified the decree and the same was identified by the Hon'ble Apex Court that the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has been done. So, the ratio laid down by the Honourable Apex Court is entirely different with the case in our hand.
29. In otherwise, since the appeal is filed under Section 100 C.P.C. looking into the factual aspect for disposal of the appeal is unnecessary. Accordingly, the ratio laid down by the Hon'ble Supreme Court in the case of http://www.judis.nic.in Banarsi and others vs. Ram Phal reported in 2003 (2) MLJ 160 (SC) is not 12 applicable with the case on our hand. Since the aggrieved parties who are the appellants alone filed this appeal, no prejudice would be caused to the appellants due to non-filing of any appeal or cross appeal by the plaintiff.
30. In respect to other factual aspects, as already discussed, the properties purchased by the plaintiff and the defendants are natham properties and patta has been granted according to the enjoyment made by them. In Ex.C1, the Commissioner has clearly narrated the enjoyment made by the plaintiff and only in accordance with the said report, both the Courts below granted the decree in part in favour of the plaintiff. Accordingly, no interference is necessary and the findings rendered by the Courts below are confirmed.
31. In the result, the Second Appeal is dismissed, confirming the Judgment and Decree dated 17.12.2008 in A.S.No.10 of 2008 on the file of the Sub-Court, Sankarankoil. No costs. Consequently, M.P.No.2 of 2009 is closed.
04.06.2019 Index : Yes / No. Internet : Yes / No. ogy To
1. The Sub-Court, Sankarankoil.
2. The Principal District Munsif Court, Sankarankoil.
http://www.judis.nic.in 13 R.PONGIAPPAN, J.
ogy Pre-delivery Judgment made in S.A.(MD) No.705 of 2009 04.06.2019 http://www.judis.nic.in