Madras High Court
A.Sikkandar vs M.Basheer Ahamed on 22 December, 2020
Author: R.Mahadevan
Bench: R.Mahadevan
C.M.P.(MD)No.3676 of 2016
in S.A(MD)SR.No.23272 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
C.M.P.(MD)No.3676 of 2016
in S.A.(MD)SR.No.23272 of 2010
1.A.Sikkandar
2.A.Abbas Manthiri (Died)
3.A.Akkeem
4.A.Rajabnisha
5.A.Fathima
6.A.Ansariya (Minor) ... Petitioners/Petitioners/
Petitioners 1 to 3 & Proposed petitioners 4 to 6
Appellants 1 to 3 & Proposed Appellants 4 to 6
Vs.
1.M.Basheer Ahamed
2.Saleem
3.Abbas
4.Abdul Subhahani (Died)
5.Fathima Beevi
6.Jiyaudeen
7.Sirajudeen
8.Samsudeen
9.Khajamydeen
10.Sherfudeen ... Respondents/Respondents
Respondents/Respondents
C.M.P.(MD)No.3676 of 2016 : Petition filed under Order IV Rule 9(4)
of A.S. Rules, to condone the delay of 137 days in representing the
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C.M.P.(MD)No.3676 of 2016
in S.A(MD)SR.No.23272 of 2010
Miscellaneous Petitions in M.P(MD)SR.Nos.37506, 37507 and 37508 of
2015 in M.P(MD)No.1 of 2010 in S.A(MD)SR.No.23272 of 2010 on the
file of this Court.
S.A.(MD)No.SR 23272 of 2010: Second Appeal filed under Section 100
of Civil Procedure Code against the Judgment and Decree dated
14.12.2009 passed in A.S.No.100 of 2008 on the file of the Sub-Court,
Theni, confirming the Judgment and Decree dated 16.07.2007 passed in
O.S.No.339 of 2006 on the file of the District Munsif, Theni.
For Petitioners : Mr.A.Arumugam
For RR 1 to 3 & 6 to 10 : Mr.T.Lajapathi Roy
ORDER
1. The brief facts of the case are as follows:
The petitioners 1 to 3 herein are the plaintiffs 1 to 3 in the suit in O.S.No.309 of 2002 on the file of the District Munsif Court, Periyakulam, which was subsequently transferred to the District Munsif Court, Theni and renumbered as O.S.No.339 of 2006. The respondents herein are the defendants in the said suit. The plaintiffs instituted the suit for permanent injunction, which was, after trial, dismissed, vide judgment and decree dated 16.07.2007. Challenging the same, they filed an appeal in AS.No.100 of 2008 before the Sub Court, Theni. By http://www.judis.nic.in 2/11 C.M.P.(MD)No.3676 of 2016 in S.A(MD)SR.No.23272 of 2010 judgment and decree dated 14.12.2009, the lower appellate court dismissed the said appeal confirming the judgment and decree passed by the trial Court. Feeling aggrieved, the plaintiffs filed a Second Appeal with an application in MP(MD).No.1 of 2010 to condone the delay in filing the same. During the pendency of the same, the second plaintiff by name Abbas Manthiri died. Therefore, the other plaintiffs filed the applications in MP(MD)Nos.37506, 37507 and 37508 of 2015 seeking to condone the delay in filing the application to set aside the abatement caused due to the death of the deceased second plaintiff, set aside the abatement and bring on record the legal heirs of the deceased plaintiff. However, the said applications' papers were returned for complying with certain defects. After rectifying the same, the papers were represented with the present petition seeking to condone the delay of 137 days in representing the same.
2.According to the learned counsel for the petitioners, the suit property comprised in Survey No.1655/19 measuring to an extent of 12 cents in Allinagaram, Theni Taluk and District originally belonged to the plaintiffs' ancestors viz., Syed Meera Lebbai, Vellai Rowther, Ismail Rowther and Myeth Meera Lebbai and the same was sub-divided into http://www.judis.nic.in 3/11 C.M.P.(MD)No.3676 of 2016 in S.A(MD)SR.No.23272 of 2010 S,Nos.1655/19A and 1655/19B measuring to an extent of 7 cents and 5 cents respectively; the southern side of S.No.1655/19B was purchased by one M.S.Mohamed Ibrahim and the same was later gifted for the establishment of a Jamath viz., 'Mohideen Andavar Pallivasal' on 19.02.1965; out of 7 cents comprised in S.No.1655/19A, 2 cents have been in possession and enjoyment of the legal heirs of Batcha Rowther and the remaining extent of 5 cents have been in possession and enjoyment of the plaintiffs, which was interfered by the defendants. The learned counsel further submitted that the plaintiffs have established through oral and documentary evidence that they are the absolute owners of the suit property and they have been in possession and enjoyment of the same, whereas the defendants failed to produce the sale deed dated 15.04.1924, which is the basis of their defence, however, the Courts below failed to appreciate the same in a proper perspective. It is also submitted that the lower appellate court ought to have considered the additional documents produced by the plaintiffs and also appointed an Advocate Commissioner to identify the suit property. Thus, the learned counsel submitted that the plaintiffs have fair chance of success in the second appeal and hence, the present petition may be allowed, thereby granting an opportunity to the plaintiffs to contest the case on merits. http://www.judis.nic.in 4/11 C.M.P.(MD)No.3676 of 2016 in S.A(MD)SR.No.23272 of 2010
3.Per contra, the learned counsel appearing for the respondents 1 to 3 & 6 to 10 submitted that the sixth respondent's grandfather by name, Maideen Pitchai and his brother by name Nahoor Rowther jointly purchased 4 cents of the suit property from the original owner Ismayil Rowther vide a registered sale deed bearing Document No.481/1924 and the rest of the property was also alienated by the said Ismayil Rowther to the third parties; the father of the plaintiffs had purchased one cent of land in the suit property and he immediately, sold the same to the father of the respondents 1 and 2 by a registered sale document bearing Document No.2776/1960, dated 29.11.1960; and hence, the sixth respondent had acquired the title over the entire suit property measuring to an extent of 5 cents by way of subsequent sale deed dated 27.08.1997, which was marked as Ex.B2. The learned counsel further submitted that the father of the sixth respondent already filed a suit in O.S.No.131 of 1997, which was decreed in his favour and therefore, the plaintiffs do not have any valid or separate title over the suit property and the present suit was instituted based on the bogus will dated 27.05.1982. Thus, according to the learned counsel, the Courts below after considering the oral and documentary evidence, have rightly rejected the case of the plaintiffs, http://www.judis.nic.in 5/11 C.M.P.(MD)No.3676 of 2016 in S.A(MD)SR.No.23272 of 2010 which does not require any interference by this Court.
4.Heard both sides and perused the records.
5.Concededly, the present second appeal arises out of the concurrent judgment passed by the Courts below. The plaintiffs approached this Court with a delay of 64 days in preferring the said second appeal. They have also represented the petitions seeking to set aside the abatement caused due to the death of the second plaintiff and to bring on record the legal heirs of the said deceased plaintiff, belatedly.
6.At the outset, it is relevant to point out that under Section 100 of the Code of Civil Procedure, the jurisdiction of the Court to interfere with the judgments of the Courts below is confined to hearing of substantial questions of law; and interference with the finding of fact by the High Court is not warranted if it invokes reappreciation of evidence; [Refer: H. P. Pyarejan v. Dasappa, (2006) 2 SCC 496].
7.However, taking note of the grounds raised in the second appeal and considering the submissions made on either side, this Court, in the http://www.judis.nic.in 6/11 C.M.P.(MD)No.3676 of 2016 in S.A(MD)SR.No.23272 of 2010 interest of justice, provided an opportunity to the petitioners by appointing an Advocate Commissioner, vide order dated 08.12.2020 for the purpose of ascertaining the physical features of the suit property. Accordingly, the Advocate Commissioner inspected the suit property and filed his report on 16.12.2020, the relevant passage of which reads as follows:-
“7.The aforesaid suit schedule property is situated in “Board School Street” the same is situated on the Western side of the road, when we entered from the North. The physical feature of the above said suit schedule property is as follows:-
(i) As per the physical feature the property lies on the Western side of the Board School Street.
(ii) With the help of the local surveyor the entire four boundaries referred in my rough plan as “ABCDEFJI” was measured and found that the same is 7 cents, in which Western side adjacent portion is identified as “BCDGH” which measures 1.99 cents.
(iii) The suit schedule property and its four boundaries are as follows:-
North - House Portion “BCDGH”
South - Noor Mahal
East - Board School Street
West - Alwar Kovil Thoppu
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C.M.P.(MD)No.3676 of 2016
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(iv) As per the rough sketch ingress and egress lies between ABHI.
(v) There is 6 ft., height iron gate found locked between I and H.
(vi) The sixth respondent namely Jiyavudeen come forward with the key and opened the gate found between I and H in the rough sketch.
(vii) The property referred as “ABHGDEFJI” in the rough plan is in 'L' shape. I crave leave of this Court to refer to the rough plan filed along with the above report as part and parcel of this report.
(viii) The adjacent portion of the suit schedule property on the Northern side was identified in the rough sketch as BCDGH, in which I found some small superstructure and the same was utilized for the purpose of residents along with demolished condition of some supporting wall of superstructure, plants and trees.
(ix) Inside the suit schedule property “ABHGDEFJI” and behind the adjacent land on the Northern side identified as “BCDGH”. I found some TIN sheet unused shed, which is temporary in nature, the remaining land is vacant.
(x) There is no identification to show that any persons are residing in the suit schedule property referred as “ABHGDEFJI” in rough plan and there is no other activities found.” http://www.judis.nic.in 8/11 C.M.P.(MD)No.3676 of 2016 in S.A(MD)SR.No.23272 of 2010
8.A cursory glance at the report of the Advocate Commissioner as extracted above, reveals that the same would strengthen the case put forth by the respondents / defendants. As such, this Court finds no ground much less valid ground to interfere with the concurrent judgments of the Courts below.
9.In such perspective of the matter, this Court is of the opinion that there is no purpose in condoning the delay of 137 days in representing the petitions and thereby, entertaining the second appeal filed in the year 2010.
10.Hence, this Miscellaneous Petition is dismissed. As a sequel, all the Miscellaneous Petitions and second appeal stand rejected at SR stage. No costs.
22.12.2020 Index : Yes/No Internet: Yes/No ps Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be http://www.judis.nic.in 9/11 C.M.P.(MD)No.3676 of 2016 in S.A(MD)SR.No.23272 of 2010 responsibility of the advocate/litigant concerned. To
1.The Sub Court, Theni.
2.The District Munsif Court, Theni.
http://www.judis.nic.in 10/11 C.M.P.(MD)No.3676 of 2016 in S.A(MD)SR.No.23272 of 2010 R.MAHADEVAN, J.
ps C.M.P.(MD)No.3676 of 2016 in S.A.(MD)SR.No.23272 of 2010 22.12.2020 http://www.judis.nic.in 11/11