Madras High Court
T.M.Arunachalam (Died) vs Ramadoss ...1St on 7 December, 2022
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.1042 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1042 of 2004
and
C.M.P.No.7730 of 2004
1.T.M.Arunachalam (Died)
2.Bhuvaneswari
3.Vithiya Parimala
4.Nithiya Priya
5.Kousalya ... Appellant/1 st Respondent/Plaintiff
Vs.
1.Ramadoss ...1st Respondent/Appellant/2 nd Defendant
2.Fathimunnissa Bai ...2nd Respondent/2nd Respondent/1st Defendant
3.Gopalakrishnan ...3rd Respondent
4.Sundaresan ...4th Respondent
(Appellants 2 to 5 and Respondents 3 and 4 were brought on record as
the legal representatives of the deceased sole appellant vide orders of
this Court dated 27.01.2021 in C.M.P.Nos.20716 and 20717 of 2017
in S.A.No.1042 of 2004 by TKRJ).
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S.A.No.1042 of 2004
PRAYER : Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 17.03.2004 in
A.S.No.121 of 2003 on the file of the learned Principal District Judge,
Vellore District, Vellore, reversing the Judgment and Decree dated
06.10.2003 in O.S.No.169 of 1995 on the file of the learned Principal
District Munsif, Vellore, Vellore District.
For Appellants : Mr.P.Dinesh Kumar
For Respondents : Mr.T.R.Rajaraman for R1
Mr.M.Ahamed Zuber for R2
– No appearance
Mr.K.Velangkani for R3 and R4
-No appearance
JUDGMENT
The plaintiff is the appellant before this Court challenging the Judgment and Decree passed in A.S.No.121 of 2003 on the file of the learned Principal District Judge, Vellore District, Vellore, in and by which the learned Judge has reversed the Judgment and Decree passed by the learned Principal District Munsif, Vellore, Vellore District, in 2/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 O.S.No.169 of 1995. The parties are referred to in the same litigative status as in the Original Suit.
2.The facts in brief which are necessary for disposing of the above Second Appeal are hereinbelow set out:
The plaintiff had filed a suit O.S.No.169 of 1995 on the file of the learned Principal District Munsif, Vellore, Vellore District, for permanent injunction restraining the defendants, their men and agents from interfering in any manner with the plaintiff's peaceful possession and enjoyment of the suit schedule mentioned property. The suit schedule property is described as follows:
“eh/M/o/ntY}h; rg;/o/ nrh;e;j ntY}h;
jhY}f;fh 118 bjhug;gho fpuhkj;jpy;
thjpf;F ghj;jpag;gl;L. mthpd; RthjPd
mDgtj;jpy; ,Ue;J tUk; rh;f;fhh; g[";ir
rh;nt vz;/34 /4y; 2/82 Vf;fhpy; capy; rhrd
epyj;jpw;;F tlf;F. mgpkd;a{ epyj;jpw;;F
bjw;F lhf;lh; utpjhk!; epyj;jpw;F nkw;F.
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S.A.No.1042 of 2004
Kjy; gpujpthjp ghj;jpKdprhgp epyj;jpw;F
fpHf;F ,jd; kj;jpapy; 0/82 brz;L epyk;/”
3.It is the case of the plaintiff that the schedule mentioned property along with other properties was the ancestral property. The paternal grandfather of the plaintiff was in possession and enjoyment of the schedule property and other properties. One Singaravelu Mudaliar had four sons, namely, Palani Mudali, Vijayaranga Mudali, Manickka Mudali and Chakkarapani Mudali. The said Singaravelu Mudaliar and his four sons were in possession and enjoyment of the property. In the year 1951, they had effected a division of the family properties among themselves. In the said partition, the schedule property along with some other properties fell to the share of Manickka Mudali, the father of the plaintiff herein. On and from the date of partition, the plaintiff's father Manickka Mudali was in exclusive possession and enjoyment of the schedule mentioned property. The schedule mentioned property is comprised in S.No.34/4 4/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 and forms part of a larger extent measuring 2.82 acres.
4.It is the case of the plaintiff that the patta in respect of an extent of 2.82 acres in S.No.34/4 stood in the name of the plaintiff's father. It is also the case of the plaintiff that his father had been exercising his right as an absolute owner in respect of the entire extent of 2.82 acres. On 17.03.1973, he had executed a registered usufructuary mortgage in favour of the 1st defendant by hypothecating the entire extent. Subsequently, this Mortgage Deed was redeemed and thereafter, the plaintiff's father Manickka Mudaliar had executed a registered Will dated 09.08.1984 bequeathing one acre out of a total extent of 2.82 acres in S.No.34/4 and a half share in the Well and its lease in S.No.34/3 in favour of the plaintiff as well as his children.
Subsequently, the plaintiff and his father had also sold another extent of one acre out of total extent of 2.82 acres in S.No.34/4 in favour of one Dr.Thamas. After excluding these two items, the remaining 82 cents of land was in possession and enjoyment of the plaintiff. He 5/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 would submit that his father died on 09.10.1994 and on his death, the suit property devolved on the plaintiff and he became the absolute owner of the same. The defendants have no semblance of right to the property. They quarreled with the plaintiff in respect of ridges separating their lands from the plaintiff. Therefore, the plaintiff had to arrange for a survey of the lands fixing the survey stones as per F.M.Book. This was removed by the defendants along with his henchmen on 23.03.1994. The 1st defendant has been causing hindrance and therefore, left with no other alternative option, the plaintiff is constrained to file the present suit.
5.The defendants on entering appearance had filed their Written Statement inter alia denying the plaintiff's right to an extent of 80 cents. The defendants would submit that the plaintiff is only entitled to an extent of 42 ½ cents after the sale at the behest. It is the case of the defendants that under the Partition Deed dated 19.08.1951, the plaintiff's father was allotted only to an extent of 2.42 ½ acres in 6/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 S.No.34 and this property was earmarked as Schedule 'D' in the Partition Deed. After being allotted to an extent of 2.42 ½ acres, the said Manickka Mudaliar had been bequeathed one acre on the plaintiff under the Will dated 09.08.1984 and sold one acre to Dr.Thamas lelaving with him just 42 ½ cents in S.No.34. After excluding these two items, the remaining extent of land is only 42 ½ cents since the plaintiff's father got only 2.42 ½ acres in Survey No.34 under the Partition Deed dated 19.08.1951. The plaintiff's father had right for patta only to an extent of 2.42 ½ acres. The Mortgage Deed dated 17.03.1973 would not clothe the plaintiff with the right of 2.82 acres as claimed. The defendant had denied the allegations contained in the Plaint regarding the removal of the survey stones, gathering rowdy elements, etc., The defendant would submit that the plaintiff's father had been called for an enquiry on 23.06.1964 with reference to the sub division of S.No.34. The Tahsildar, Vellore, had sent a notice dated 17.06.1964 in this regard, however, the plaintiff's father remained absent.
7/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004
6.The defendants would submit that the 1st defendant had purchased the lands from one Vijayarangam, the paternal uncle of the plaintiff under two Sale Deeds dated 09.09.1970 and 06.11.1982 which were the properties that fell to his share under the Partition Deed dated 19.08.1951. Ever since then the 1st defendant is in possession and enjoyment of the suit property. The 2nd defendant and two others, namely, S.Damodaran and G.Damodaran, had purchased 74 cents in S.No.34/2 under a registered Sale Deed dated 30.01.1995 and an extent of 74 cents in S.No.34/2 and 4 ½ cents in S.No.34/3 under a registered Sale Deed dated 30.01.1995. Thus, the 2nd defendant and two others had purchased the total extent of 1.52 ½ acres from the 1st defendant and ever since they have been in possession and enjoyment of the same. The plaintiff has not made out any cause of action and hence, the suit is liable to be dismissed.
7.The learned Principal District Munsif, Vellore, had framed the 8/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 following issues:
“(1)Whether the plaintiff is entitled for permanent injunction against the defendants?
(2)Whether there is no cause of action for the suit?
(3)To what relief the plaintiff is entitled?”
8.The plaintiff had examined himself as PW1 and marked Ex.A.1 to Ex.A.15. On the side of the defendants, the 2nd respondent had examined himself as DW1 and Ex.B.1 to Ex.B.6 were marked on his side.
9.The learned Principal District Munsif, on considering the evidence on record both oral as well as documentary decreed the suit as prayed for. The trial Court had placed reliance upon Ex.A.7 - 9/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 Mortgage Deed under which the father of the plaintiff had mortgaged an extent of 2.82 acres to Fathimunnissa Bi and also Ex.A.1 – Patta and Exs.A.3, 5 and 6 – Kist receipts which show the total extent of 2.82 acres. The learned Judge has also taken note of Ex.A.11 -Sale Deed of which would show the extent of 2.82 acres standing in the name of the plaintiff's father. Challenging the said Judgment and Decree, the 2nd defendant filed A.S.No.121 of 2003 on the file of the learned Principal District Judge, Vellore. The learned Judge relying upon Ex.B.3 which is the Partition Deed under which the plaintiff and his brothers had partitioned their property held that only an extent of 2.42 ½ acres was allotted to the share of the plaintiff's father. The learned Judge observed that the plaintiff traced his title only to the Partition Deed dated 19.08.1951 which has been marked as Ex.B.3 before the trial Court and therefore, in the light of the measurements and recital in the said document and taking into account the fact that the plaintiff's father had dealt with two acres of land only an extent of 42 ½ cents remains with the plaintiff. The learned Judge has 10/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 proceeded to allow the appeal. Challenging the same, the appellant is before this Court.
10.The Second Appeal was admitted on the following substantial questions of Law:
“(1)Whether the revenue records like Patta, Patta Pass Book, Kist Receipt, Chitta and Adangal and particularly Patta Pass Book issued under the Tamil Nadu Patta Pass Book Act are the prima facie evidence of title of the person in whose name Patta Pass Book has been issued to the parcels of the land entered in the Patta Pass Book?
(2)Whether the defendants are estopped from denying the title and possession of the suit property after execution of Ex.A.7?”
11.Mr.P.Dinesh Kumar, learned counsel for the appellants 11/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 would submit that all the documents filed on the side of the plaintiff, namely, Ex.A.1, Ex.A.2, Ex.A.3 to Ex.A.7 - Kist receipts and Ex.A.7 - Mortgage Deed would go to show that the plaintiff's father has been dealing with the extent of 2.82 acres in all these documents and there has been no challenge to the same. He would submit that Ex.A.7 is a registered document and therefore, the same would add weight to the contention of the plaintiff that they continued to own 2.82 acres in S.No.34/4.
12.Per contra, Mr.T.R.Rajaraman, learned counsel appearing for the defendants would submit that the plaintiffs trace the title to the property in question on the basis of Ex.B.3 - Mortgage Deed. A reading of which clearly show that the only extent of 2.42 ½ acres had been alloted to his share. Despite being allotted a lesser share the plaintiff's father with a view to creating a title on the remaining extent 12/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 is claiming a right to a larger extent for which he has manipulated the documents, namely, patta, kist receipts and the Mortgage Deed by showing a larger share. The plaintiffs traced title ultimately only under the Partition Deed of 1952. The defendant had set up a plea of adverse possession which on the face of it would prima facie prove that the defendants acknowledged the title to the plaintiff to the property. He would further submit that there cannot be granted right to the plaintiffs by way of adverse possession.
13.Heard the learned counsels appearing on either side and perused the papers.
14.The admitted fact of both parties is that Manickka Mudali has obtained title to the lands in S.No.34/4 only under Ex.B.3 – Partition Deed. The property that had fallen to the share of the defendants under Ex.B.3 is described hereinbelow:
“bjhug;gho fpuhkj;jpy; ,dhk; g[";ir 13/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 rh;nt 34 bek;gh; 11/64f;F 18/30 ,jpy; b$apd;
g[wk;nghf;Ff;F tlf;F gyt";rhj;J vy;iyf;Fk; Mjpjpuhtplh; kahdj;jpw;Fk; bjw;F vk;/v!;/guRuhk Kjyp ghfj;jpw;F fpHf;F rPdpthr gps;is epyj;jpw;F nkw;F ,jd;
kj;jpapy; 4/85f;F 7/9/0 ,e;j jPh;ita[s;s
epyj;jpYk; ,jpYs;s kh. bfha;ah. gid.
<r;rd;. g[';fd; Kjypa gy tpUc&';fspYk;
bghJtpy; ghjpf;F 2/42 1/2f;F 2/12/6f;F kjpg;g[ 500/5/”
15.A reading of this would clearly show that ManickkaMudali was granted 2.42 ½ acres in S.No.34 and Vijayaranga Mudaliyar was also given a similar extent. When the plaintiff's father has only got an extent of 2.42 ½ acres under the Partition Deed there is no 14/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 explanation as to how the plaintiff is claiming a right to a larger extent measuring 2.82 acres. The reliance upon the revenue records marked as Ex.A.1 and Ex.A.2 to Ex.A.5 is totally misconceived since the revenue records does not correspond to the documents under which the plaintiff's father had been given a right to the suit schedule property. Ex.A.7 - Mortgage Deed does not in any fashion bind the defendants as the defendants are not parties to the said documents. Even on a reading of the said document, it is clear that the plaintiff and his father had claimed a right only under Ex.B.3 – Partition Deed which gives only an extent of 2.42 acres to the plaintiffs' father Manickka Mudaliar.
That apart, the plaintiff has not made out a case to show that there has been a disturbance on the part of the defendants in his enjoyment to the extent of 42 ½ cents which he now retains after the 15/18 https://www.mhc.tn.gov.in/judis S.A.No.1042 of 2004 sale of one acre to Dr.Thamas and bequest in favour of the plaintiff's father. The defendants in their Written Statement has clearly stated that they have not interfered in the enjoyment of the plaintiff's property to the extent of 42 ½ cents in S.No.34/4 as they are in enjoyment of the remaining extent only. In the light of the above, the substantial questions of law are answered against the plaintiff and the Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petitions is closed.
07.12.2022
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
1.The Principal District Judge,
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S.A.No.1042 of 2004
Vellore District,
Vellore.
2.The Principal District Munsif,
Vellore,
Vellore District.
17/18
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S.A.No.1042 of 2004
P.T. ASHA, J,
mps
S.A.No.1042 of 2004
and
C.M.P.No.7730 of 2004
07.12.2022
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