Madras High Court
Singaram vs Manickam on 4 December, 2018
Author: R.Subramanian
Bench: R.Subramanian
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.523 of 2008
&
M.P.(MD)Nos.1 of 2008 and 2 of 2010
Singaram, S/o.Adaikalam Ambalam .. Appellant
Vs.
1.Manickam, S/o.Rackan Ambalam
2.Govindaraj, S/o.Karupaiah Kandiar .. Respondents
Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 30.11.2007, made in A.S.No.39 of
2007, on the file of the Subordinate Court, Pattukottai, reversing the
judgment and decree dated 28.12.2006, made in O.S.No.150 of 2000, on
the file of the District Munsif Court, Pattukottai.
For Appellant : Mr.N.Balakrishnan
For R1 : Mr.P.Ganapathi Subramanian
For R2 : Mr.V.K.Vijayaragavan
JUDGMENT
The first defendant in O.S.No.150 of 2000 on the file of the District Munsif Court, Pattukottai, is the appellant. The said suit was filed by him for declaration of his title with reference to the western 16 cents of land in S.No.84/8 of Valapramankadu Village. According to the plaintiff, http://www.judis.nic.in 2 he has purchased 42 cents of land from one Thiagarajan Chettiar, Represented by his Power Agent one Sampath Kumar, under Ex.A.1 Sale Deed dated 06.09.1983. His further case is that since he was working in the Army, he had entrusted the land for maintenance with the first defendant, who was the neighbouring owner. Contending that during UDR Survey, the plaintiff was granted Patta only for 9 Ares, which is equivalent to 22 ½ cents, the plaintiff claimed that he is entitled to remaining extent of 16 cents. According to him, it is the first defendant, who had encroached upon the said portion of the land on the eastern side of his land. In the above backdrop, the plaintiff sought for declaration of his title and for recovery of possession of 16 cents of land.
2.The first defendant resisted the suit contending that he had also purchased an extent of 41 cents under a registered sale deed from the very same vendor, namely, Thiagarajan Chettiar on 06.09.1983 and during UDR Survey, he was granted Patta only for 33 cents in S.No.84/8. Therefore, according to him, he has not encroached upon the plaintiff's property.
3.The second defendant claimed that his father Karupaiah Kandiar had purchased an extent of 1 Acre and 67 Cents from Manickam Chettiar, the father of the vendor of the plaintiff and the first defendant, under registered sale deed dated 02.09.1955 and he is in possession of http://www.judis.nic.in the land purchased by him. According to him, the said 1 Acre and 67 3 cents was sub-divided into various survey numbers and he was granted Patta for 25 Ares of land in S.No.84/9. Therefore, according to the second defendant, he had not encroached upon any portion of the land.
4.Before the Trial Court, the plaintiff was examined as P.W.1 and the Power Agent of Thiagarajan Chettiar was examined as P.W.2. The first defendant was examined as D.W.1 and the second defendant was examined as D.W.3. One Muthulingam was examined as D.W.2 and the Commissioner appointed by the Trial Court was examined as D.W.4. Exs.A.1 to A.12 were marked on the side of the plaintiff and Exs.B.1 to B.24 were marked on the side of the defendants. The Commissioner's Report, Plan and Survey Sketch were marked as Exs.C.1 to C.3.
5.On consideration of the evidence on record, the learned District Munsif, Pattukottai, found that the parties are in possession of the land, lesser than what has been purchased by them and therefore, the plaintiff has not made out the plea of encroachment. On the aforesaid finding, the learned District Munsif, Pattukottai, dismissed the suit.
6.Aggrieved by the judgment and decree dated 28.12.2006, passed in O.S.No.150 of 2000, by the learned District Munsif, Pattukottai, the plaintiff filed an appeal in A.S.No.39 of 2007 before the Subordinate Court, Pattukottai.
http://www.judis.nic.in 4
7.The learned Subordinate Judge, Pattukottai, on re- consideration of the evidence on record, concluded that the plaintiff's sale deed being earlier in point of time, though executed on the same day, should be given precedence and the plaintiff would be entitled to the extent purchased by him under the said sale deed and if there is any deficit, the first defendant would be at liberty to work out the rights against his vendor.
8.The learned appellate Judge also took note of the fact that the revenue proceedings under which the name of the plaintiff and the first defendant were included in the Patta for S.No.84/9 were directed to be deleted at the instance of the second defendant. On the aforesaid conclusions, the learned appellate Judge decreed the suit as against the first defendant only. The learned appellate Judge concluded that no relief could be granted against the second defendant.
9.Aggrieved by the said judgment and decree dated 30.11.2007, passed in A.S.No.39 of 2007, by the learned Subordinate Judge, Pattukottai, the first defendant has come forward with this second appeal.
10.In the second appeal, notice of motion was ordered on 11.04.2008. Pursuant to the same, the respondents have entered appearance through their counsel. Since the second appeal was not http://www.judis.nic.in 5 admitted and only notice was ordered, no question of law was framed. Hence, I frame the following substantial question of law for consideration in this second appeal:-
Whether the Courts below were right in dismissing the suit as against the second defendant holding that he is an unnecessary party?
11.After hearing the parties, this Court by order dated 18.01.2010 in M.P.(MD)No.1 of 2010 appointed Mr.K.P.Narayana Kumar, Advocate, practising before this Bench as a Commissioner to measure the properties of the parties viz., the plaintiff, the first defendant as well as the second defendant and file a report demarcating the exact area, which is in their respective occupation. It is seen that during the said enquiry, the Commissioner had found that the second defendant had alienated certain portions of the property in S.No.84/9 in favour of third parties, thereby, the total extent that he was entitled to hold in the said survey number had been reduced. Unfortunately, the second defendant had not produced those documents. The Commissioner has annexed those documents to his report, which shows that on 15.09.1999 the second defendant had sold 25 cents of land in S.No.84/9 to one Veerammal.
Admittedly, the full extent of S.No.84/9 is 25 Ares. Out of the said 25 Ares, the second defendant had sold an extent of 10 Ares, which is equivalent to 25 cents to Veerammal under sale deed dated 15.09.1999. http://www.judis.nic.in 6 Therefore, he would be entitled only an extent of 15 Ares, which is equivalent to 37.5 cents in S.No.84/9. The Commissioner's report and the plan filed before this Court would show that the second defendant is actually in possession of a larger extent of land. As rightly pointed out by Mr.V.K.Vijayaragavan, the documents, viz., the sale deed executed by the father of the second defendant in the year 1973 and the sale deed executed by the second defendant in favour of Veerammal on 15.09.1999, have not been produced before the Court and they were not made subject matter of evidence. Therefore, according to him, unless the documents are made subject matter of evidence and the plaintiff seeks appropriate relief, conclusion of the Commissioner to the effect that it is the second defendant, who is in possession of the excess land cannot be accepted by this Court. I see some force in the submission of the learned counsel. But, at the same time, the plaintiff cannot be driven to again approach the Trial Court again. After all the plaintiff and the second defendant have purchased a specific extent of land within specific boundaries under two sale deeds executed, on the same day, by the Power Agent of Thiagarajan Chettiar, they are entitled to the said extents purchased by them. It is seen that the second defendant has alienated certain portions of land, which were purchased by his father under the sale deed dated 02.09.1955. The description available in the two sale deeds, which were produced before the Commissioner, viz., Sale Deed dated 22.06.1973 executed by the plaintiff's father in favour of one Karuppaiah and the sale http://www.judis.nic.in 7 deed dated 15.09.1999 executed by the second defendant in favour of one Veerammal, would show that there had been some other sales also by the second defendant in respect of lands purchased by his father under the sale deed dated 02.09.1985, which was marked as Ex.B.7. A specific recital is also found in the sale deed dated 15.09.1999, wherein the second defendant says that the property was allotted to him by way of partition, therefore, it cannot be ruled out that the second defendant is entitled only to a lesser extent of land than what has been purchased by his father. Only if the documents are made as part of evidence, the title of all the third parties can be examined in depth and the Court can reach a fair conclusion as to the actual encroachment alleged by the plaintiff. In this view of the matter, I find that it will be in the interest of justice, to set aside the judgments and decrees of both the Courts below and remit the matter to the Trial Court with opportunity to the parties to let in fresh evidence so as to enable the Court to decide the dispute between the parties in a wholesome manner.
12.In view of the subsequent appointment of Advocate Commissioner and in view of his report, I find that the controversy between the parties has assumed a new dimension and it prima facie appears that excess land belonging to the plaintiff and the first defendant might been in possession of the second defendant. Both the Courts below have dismissed the suit as against the second defendant stating that he is http://www.judis.nic.in 8 unnecessary party. This conclusion of the Courts below, in my considered view, cannot be accepted in view of fresh evidence that has been placed before this Court.
13.In view of the above, the substantial question of law is answered in favour of the appellant. The judgments and decrees of the Courts below are set aside. The matter is remitted back to the Trial Court for fresh disposal in accordance with law. The parties are at liberty to let in further evidence and also make additional pleadings, if they are so advised. The Commissioner's report filed by Mr.K.P.Narayanakumar, is taken on record and marked as Ex.C.4 and his Plan as Ex.C.5. The documents produced by him, viz., Sale Deeds dated 22.06.1973 and 15.09.1999 are also received as additional evidence and they are marked as Exs.C.6 and C.7. The objections filed by the second respondent/second defendant will also form part of the record and the Trial Court shall take note of the objections while deciding the issue. It is made clear that the Trial Court shall decide the matter uninfluenced by any of the observations made in this judgment and dispose of the suit in accordance with law.
14.In fine, this Second Appeal is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
Index : No 04.12.2018
Internet: Yes
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http://www.judis.nic.in
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To
1.The Subordinate Judge,
Pattukottai.
2.The District Munsif,
Pattukottai.
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
10
R.SUBRAMANIAN, J.
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Judgment in
S.A.(MD)No.523 of 2008
&
M.P.(MD)Nos.1 of 2008 and 2 of 2010
04.12.2018
http://www.judis.nic.in