Madras High Court
Nagendran vs Ramanathan
Author: S.Srimathy
Bench: S.Srimathy
A.S(MD)No.203 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved On Judgment Pronounced On
01.07.2024 14.10.2024
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
A.S(MD)No.203 of 2015
and
C.M.P(MD)Nos.7322 and 7323 of 2024
1.Nagendran
2.Hariharan
3.Saravanan ...Appellants/
Defendants 1 to 3
--Vs--
1.Ramanathan
2. Saradha
3. Radhabai
4.Indhurani
5.Saraswathi
6.Sagunthala
7.Amutha
8.Padmaja ... Respondents 3 to 8/
Defendants 4 to 9
1/34
https://www.mhc.tn.gov.in/judis
A.S(MD)No.203 of 2015
PRAYER: This Appeal Suit filed under Section 96 of C.P.C., to set aside the
Judgment and Decree dated 05.06.2015 passed in O.S. No.46 of 2013 on the
file of the Principal District Court, Ramanathapuram.
For Appellants : Mr.J.Barathan
For R1 : Mr.G.Prabhu Rajadurai
For Mr.M.Thirunavukkarasu
For R2 : Died
For R3, R4, R6 &R7 : Dismissed for Default
*****
JUDGMENT
The present Appeal Suit is preferred by the defendants 1 to 3 against the Judgment and Decree, dated 05.06.2015 passed in O.S. No.46 of 2013 on the file of the Principal District Court, Ramanathapuram.
2. The plaintiffs in the suit is the respondents 1 and 2 herein, the defendants 1 to 3 are the appellants herein and the defendants 4 to 9 are the respondents 3 to 8 herein. For the sake of convenience, the parties are referred as plaintiffs and defendants as per the ranking in the suit. 2/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015
3. The suit is filed for declaration to declare the suit property belonging to plaintiffs and the defendants 4 to 9 and consequential injunction restraining the defendants 1 to 3 from interfering in the peaceful possession and enjoyment of the suit property.
4. The brief facts are that originally the larger extent of the suit property and other properties are belonging to one Ganapathy Iyer and he was having two sons, namely, Perumal Iyer and Seetharam Iyer. The said Perumal Iyer’s wife died at the young age and he is not having any issues. He had adopted seven years old Sathyanarayanan, son of Gopala Iyer. After adoption, he was given the family name of Ganapathy Iyer along with his name and he was called as Sathyanarayanan @ Perumal Neelakanda Ganapathy Iyer (in short Pe.Nee.Ganapathy Iyer) and he was living with his adopted father, Perumal Iyer. The said Perumal Iyer and his brother Seetharama Iyer had entered into partition on 05.07.1916 and the same was registered on 08.07.1916. In the said partition, the Perumal Iyer for himself and as guardian for his minor son, namely, Sathyanarayanan @ Perumal Neelakanda Ganapathy Iyer (in short Pe.Nee.Ganapathy Iyer) as 1st party and Seetharama Iyer for himself and as 3/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 guardian for his minor son Ganapathy Iyer as 2nd party had executed the partition deed. On the same date i.e. 05.07.1916, the Perumal Iyer had executed a Will in favour of his adopted son and the same was registered on 08.07.1916. Hence, the properties stands in the name of Perumal Iyer in the said partition deed was bequeathed through the Will to the said adopted son Pe.Nee.Ganapathy Iyer. In the said partition deed, dated 05.07.1916, the suit property was shown as item 8, wherein it is stated on as east west 58½ feet in that approximately ¾ feet east west on the western side shown as pathway for the usage of Udipi Sathram. Based on the partition deed, the parties were enjoying the properties. In Item No.8, out of 4 shares, leaving out one share, from the balance 3 share the said Perumal Iyer got 1½ shares. The said undivided share was in the enjoyment of both the Perumal Iyer and his adopted son. Based on the said partition deed, the said Perumal Iyer along with adopted son was residing in Door No.10/10 and thereafter, died after 10 years of partition. After his demise, based on the Will, the adopted son got the property along with the suit property and he was enjoying the properties. Since the said Perumal Iyer was given only undivided share, hence the said Sathyanarayan @ Pe.Nee.Ganapathy Iyer along with other owners, namely, Ganapathy Iyer, son Seetharama Iyer and Sankara Sasthri son of Kodilinga Dhanashkodi Sasthiri had 4/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 divided the properties earmarked the portion of the parties and had executed partition deed, dated 18.12.1945. Door No.10/10 along with the western portion and the property on the western side which shown in the B Schedule of the deed was allotted to the 1st plaintiff Ramalingam's father, namely, Pe.Nee.Ganapathy Iyer and thereafter he was in possession and the enjoyment until his demise on 06.01.1984. The Plaintiff is the son of said Pe.Nee.Ganapathi Iyer who was residing along with his mother and the defendants 4 to 9 are the daughters and they are entitled to the properties. The said Pe.Nee.Ganapathy Iyer had given his daughters in marriage before his death itself and all the daughters are living separately along with their husbands. The said Pe.Nee.Ganapathy Iyer was in possession and enjoyment of the property by encumbering the property by othi, mortgage and lease and thereafter redeemed the same. After the death of the said Pe.Nee.Ganapathy Iyer, the plaintiff being his only son had also enjoyed the property by way of othi, mortgage and lease and also redeemed the property. The aforesaid adopted son signed as Pe.Nee.Ganapathy Iyer and documents were also executed by affixing signature Pe.Nee.Ganapathy Iyer. After the death of Pe.Nee.Ganapathy Iyer, plaintiff (only son of the said Pe.Nee.Ganapathy Iyer) along with his family and mother was residing in the suit property. In the year 1987, he had put up tiled house in the first floor and has let it for rent. In 5/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 the year 1994 he had extended the house on the northern side to an extent of 20 feet on south-north and east-west 20½ feet, then an open verandah and then on further north 30 feet north-south 20 ½ feet east west a ‘tar house’ and the plaintiff along with his family was in enjoyment of the property old house and the subsequent construction. In the year 1999 the plaintiff had put up upstairs on the tar house and was in enjoyment of the same. Based on the earlier partition deed, dated 05.07.2016 the plaintiff’s father Pe.Nee.Ganapathy Iyer was in enjoyment along with his father Perumal Iyer and based on 18.12.1945 partition deed the plaintiff's father Pe.Nee.Ganapathy Iyer along with the other co-sharers Ganapathy Iyer son of Seetharama Iyer and Sankara Sastri son of Kodilinga Dhanashkodi Sastri had divided the property and were enjoying individually. Thereafter the plaintiff through sale deed, dated 14.12.2005 had sold a portion of the property on the northern side to one Bhuvaneshwari wife of Raghavan admeasuring 55 feet north south and 20 ½ feet on the east west and she was in enjoyment of the property by put up construction. In house admeasuring east-west 20 ½ feet and north-south 30 feet existed during the partition dated 05.07.1916 is still in existence in the front portion on the southern side of the suit property and the Door No.10. However, the Ward No. 10 was changed to 11, then further changed to 18. The house stated as Item No. 8 in partition deed dated 05.07.1960 the measurement on the east-west is 54¾ 6/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 and the Door No.10/9 and 10/10. In the partition deed, dated 18.12.1945 the Door No.10/9 was in possession of Ganapathi Iyer son of Seetharama Iyer and the same was allotted to him. The Door No.10/10 the western portion shown in ‘B Schedule’ was allotted to Pe.Ne.Ganapathy Iyer son of Perumal Iyer who is the father of the plaintiff. The eastern portion ‘C Schedule’ was allotted to Kodilinga Sankara Sastri. Hence the houses of Pe.Ne.Ganapathy Iyer and Kodilinga Sankara Sastri having same Door No.10. Even though, the Door No. 10 was divided among Pe.Ne.Ganapathy Iyer son of Perumal Iyer and Kodilinga Sankara Sastri, in the year 1961, in the property tax records instead of adding the said Kodilinga Sankara Sastri, his father Kodilinga Dhanashkodi Sastri name was added. Further in Door No. 10, the electricity service connection No. 82 stands in the name of Kodilinga Sasthiri's. When the said Kodilinga Sankara Sastri sold the property to Rajamani Ammal in the year 1970, the said Rajamani Ammal has obtained separate electricity service connection in her name. Hence, electricity connection No.82 given to Door No.10 is being enjoyed by the plaintiff. The subsequent construction put up by the plaintiff in the old house which was let in for rent was given Door No.10A. And also, the upstairs put up adjacent to the old building also given the old Door Number. The plaintiff's father Pe.Ne.Ganapathy Iyer had paid property tax to the old house, then the plaintiff is paying the property tax to the old and subsequent construction and is 7/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 in enjoyment of the property. Likewise, the plaintiff is enjoying the old electricity connection No.82 along with new construction service connection No.516. Now, the ten-digit No.307-001-82 is granted for the electricity connection No.82 and 05-307-001-516 is granted for the electricity connection No.516. Also, the water connection stands in the name of the plaintiff and Patta No.782 was issued in the name of the plaintiff. In short the plaintiff is in enjoyment of the old pucca house admeasuring 30 north-south 20½ east-west, on the old building upstairs 1st plaintiff put up tiled construction, 1991 additional construction of tar house on northern side adjacent to old building admeasuring 20 north-south 20 ½ east west and on northern side north-south 30 and 20 ½ east west tar house, on north side in the vacant side plastic sheet roof for storing materials, then 1999 upstairs on the tar house, then plastic sheet roof on the said tar house. A well in the “mutham” and another well in the plastic roof sheet portion. The said two wells are shown in the partition deed are still in existence. In the total extent of suit property for the constructed portion Natham Survey number is allotted as S.No.627/682-1 and Patta No.782 was issued in the name of the plaintiff. Then to the vacant site on the north and on the east and west vacant place from S.No.627 it is changed to S.No.777/2 stands in the name of Kodilinga Sastri nicked named as Kodiyappa Iyer, who is the 8/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 grandfather of Kodilinga Sankara Sastri and Patta No.1089 stands in their name. The properties comprised in Patta Nos.782 and 1089 are allotted to respective parties under the earlier two partition deeds and then the patta was issued in the respective parties’ names after the said partition and they are in enjoyment of the properties.
5. While that being so, the defendants 1 to 3 are not entitled to any portion of the property. While that being so, the defendants 1 to 3 are created false documents and threatening the plaintiff in order to grab the property. The defendants 1 to 3 feasibly with coercion encroached the property. The defendants 1 to 3 or their vendors do not have any right at any point of time. When the defendants claimed ownership through the sale deed dated 11.10.2013, the plaintiff verified the said false documents and found ought that the contentions stated in the sale deed are false. The said Samayandi or the said Aathamarammaiyer was not having any right over the suit property. The said Samayandi was not the adopted son of the said Aathamarammaiyer. Hence the Will stated in the sale deed dated 11.10.2013 was false document. The suit property belongs to the plaintiffs’ ancestors and hence the property cannot belong to Aathamarammaiyer, hence the said Samayandi cannot claim right over the property, consequently the defendants 1 to 3 are not entitled to the suit 9/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 property. Further the defendants cannot claim any right through an unproved Will or through an unproved adoption. The alleged Will dated 13.12.1989 executed by the said Aathamarammaiyer is false document. The said Nanbu wife of Samayandi had obtained Patta No.783 by including her name fraudulently. After knowing these facts immediately, the plaintiff had submitted petition to the Tahsildar but no action was not taken by the Tahsildar. Hence, the plaintiff had filed a petition on the grievance day and the same is still pending. When the said Aathamarammaiyer was not having any right over the suit property, the defendants 1 to 3 claiming right through the said Aathamarammaiyer through false document cannot claim right over the suit property. The said Pe.Nee.Ganapathy Iyer is the father of the 1st plaintiff and he is the only son, the second plaintiff is the wife of Pe.Nee.Ganapathy Iyer and defendants 4 to 9 are the daughters of Pe.Nee.Ganapathy Iyer. Therefore, the defendants 1 to 3 cannot claim any right, since the 3rd defendant or his principal was not having any right to sell the suit property. The defendants 1 to 3 are having money power and muscle power and had forcibly trying to usurp the possession of the suit property without any right over the property. Hence the suit for declaration and injunction.
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6. The defendants 1 to 3 had filed written statement wherein the defendants 1 to 3 had denied the contention of the plaintiffs as false and had stated that the present suit is filed unnecessarily, the four boundaries stated in the suit are incorrect and the patta number and survey number or incorrect. Further started that the Bhuvaneswari’s property is not lying on the southern side of Conservancy Lane. The first plaintiff’s property and the said Bhubaneswari’s property is on the northern side of Conservancy Lane. The suit property is on the Southern side of the Conservancy Lane and the same belongs to the defendants. Further, on the date of filing of the suit property, the 1st and 2nd defendants are in possession of the property and the plaintiffs ought to have paid court fees under 25 (a) and not 25(b), hence the plaintiffs had paid incorrect court fees. The plaintiffs failed to file the family tree and hence it is difficult to understand the plaintiff’s case. Also stated originally the property do not belong to Ganapathy Iyer, but was is belonging to Perumal Iyer. The defendant further stated that Ganapathy Iyer was not having two sons namely Perumal Iyer, and Sitaram Iyer and the said Sitaram Iyer was never born and also deny that Perumal Iyer’s wife died at the young age and he adopted Satyanarayanan alias Perumal Neelakanda Ganapathy Iyer (who was referred in the documents as Pe.Nee.Ganapathy Iyer). And also stated that Perumal Iyer 11/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 had only son, namely Ganapathy Iyer. The defendants deny the partition deed dated 05.07.1916 and also stated that the Ganapathy Iyer’s property was not inherited by Perumal Iyer along Satyanarayanan alias Perumal Neelakanda Ganapathy Iyer as 1st party and Seetharama Iyer and his son Ganapathy Iyer as 2nd party as stated in the said partition deed dated 05.07.1916, the deed was not registered, the parties were never in possession and enjoyment of the property. Also denied that Will dated 05.07.1916 executed by Perumal Iyer to Satyanarayanan alias Perumal Neelakanda Ganapathy Iyer. Further Satyanarayanan alias Perumal Neelakanda Ganapathy Iyer was not the son of Perumal Iyer. The son of Perumal Iyer’s name is Ganapathy Iyer. The property mentioned in partition deed dated 05.07.1916 is not indicating the suit property or the properties nearby the suit property. The Udupi Chatram is 165 feet away from the suit property. The Item No.8 stated in the said partition, it is not the suit property and the said item was allotted to Perumal or not ought to be proved by the plaintiff. The plaintiff mentioned Perumal Iyer is not the father of Ganapathy Iyer. The adopted son was not residing in the suit property. The 1916 partition mentions Door No.10/10 is not the suit property. The suit property door number is 18/10–1. Likewise, the 8 th item stated in partition deed dated 18.12.1945 is not the suit property. The suit property was never allotted to 12/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 plaintiff’s father Pe.Nee.Ganapathy Iyer at any point of time and he never signs as Pe.Nee.Ganapathy Iyer and the claim of the plaintiff about his signature is false. The 1st plaintiff’s father’s name is Kuppu Iyer and the same is recorded in the Ramanatha Swamy Temple records and the plaintiff had impersonated and filed the suit, the defendants 4 to 9 are not the legal of Pa.Nee.Ganapathy Iyer, the plaintiffs or their ancestors had never enjoyed the suit property by mortgaging, or let for Othi or lease. Further, the suit is not on north side of leased portion. The contention the plaintiff that he had put up 30×20½ titled roof over the old building in the year 1999 is denied as false. The sale by the plaintiff to Bhuvaneswari wife of Ragavan on 14.02.2005 admeasuring south- north 55 feet and east-west 20½ is not forming part of the suit property, but the said property is in S.No.777B. Further on the ground there is Conservancy Lane on the north of suit property, on the further north the plaintiff’s residence constructed in two cents is available, on further north is the Bhuvaneswari’s house is available which was sold through sale dated 14.02.2005. In the said sale deed the plaintiff had mistakenly mentioned the survey number and patta number and hence a rectification deed was executed on 13.05.2007. In the said deed, the plaintiff had admitted the suit property doesn’t belong to them and in the said place the said Bhuvaneswari had constructed house and is residing 13/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 there, but the said house is not forming party of the suit property. The eastern side measurement of suit property is not 54¾ feet but it is 20 ½ feet and the Door No.10/9 and 10/10 is not the suit property and the same is separately available. The plaintiff’s father Pe.Nee.Ganapathy Iyer or Kodilinga Sankara Sastri had never resided in the suit property at any point of time and they never allotted the suit property at any point of time. The plaintiff’s instead of litigating for the property situated in S.No.777B, is litigating for the property belonging to the defendants situated in S.No.627/682-1. The Door No.10 is not the suit property, the suit property’s old Door No.18/17 and new Door No.18/10-1. The Electricity Service Connection for the suit property is not 82 but it is 307-001-0516 and 2007-001-0082. The 1970 sale from Sankar Sastrigal to Rajamani Ammal is not the portion of the suit property. The property referred in Door No.10A, its building is not the suit property, the plaintiff’s ancestors never paid property taxes or water taxes for the property, it is only the defendants 1 and 2 are paying the property taxes, water taxes to the suit property. The plaintiffs are claiming the defendants’ property as their own and had filed the suit. There is no old building, vacant site or plastic shed in the suit property as contended by the plaintiff. The suit property is in S.No.627/682/1, but not in Patta No.782, the correct Patta No.783. In suit property one Well is available and no portion of the suit property is in S.No.777/2. The patta No. 1089 was not 14/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 issued in the name of Kodiappa Iyer. That patta is not indicating the suit property. The suit property never belong to Kodiappa Iyer or Pe.Nee.Ganapathy and they were never issued any Patta in their name for the suit property.
7. The plaintiff is litigating for the property which belongs to the defendants 1 and 2. The defendants had never intimidated the plaintiffs. The suit property was purchased from 3rd defendant by the defendants 1 and 2 for proper sale consideration and hence the suit property belongs to the defendant. The suit property originally belongs to Atmarammaiyer and the Will dated 31.12.1999 is true and the said Nambu had not violated any rules and she had inherited through her husband and obtain Patta and was in possession and enjoyment. There is no necessity for the defendants 1 to 3 for making false claim over the suit property and there is no necessity for the defendants to encroach the suit property on 28.11.2013. The suit property originally belongs to Perumal Iyer, then to his son Ganapathy Iyer and during his life time he was granted Settlement Patta. The said Ganapathy Iyer died and he had only son Ramanathan and his wife’s name is Parvathavardhini Ammal and they have no issues. Hence the Parvathavardhini Ammal had adopted Atmarammaiyer and bequeathed the properties to the said Atmarammaiyer through Will dated 01.12.1964. The said Atmarammaiyer as the adopted son had sold some 15/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 properties through sale deed dated 17.03.1967 and the remaining retained by the said Atmarammaiyer. Further the said Atmarammaiyer did not marry and he had adopted one Samayandi and the Will proved in Rameswaram Munsif Court. Hence the said Atmarammaiyer had bequeathed the properties through Will on 13.12.1999 and died on 21.02.2000. Through the said Will the said Samayandi was in possession and enjoyment and he died on 26.04.2007. Thereafter his wife had inherited the properties and obtain Patta and she died on 21.01.2012. After her demise the legal heirs of Samayandi namely Mahalaxmi, Manikandan, Muthu Kamakshi, Saranya, Parvatham had executed power of attorney to the 3rd defendant on 29.02.2012. Thereafter the said power holder had executed sale deed dated 11.10.2013 to the defendants 1 and 2. After the sale, the defendants had obtained Patta. The Door No.18/10-1 is allotted to the suit property and the defendants 1 and 2 are paying property tax and thereby in possession and enjoyment of the suit property, hence, prayed to dismiss the suit.
8. After considering the pleadings, the trial court had formulated the following issues:
i.Whether the suit property is belonging to plaintiffs and 4 to 9 defendants?
ii.Whether the plaintiffs are entitled for declaration as prayed for? 16/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 iii.Whether the plaintiffs are entitled for permanent injunction as prayed for in the suit?
iv.The Court fee paid by the plaintiffs is correct? v.Whether Perumal Iyar and Seetharamaiyar are the sons of Ganapathy Iyer?
vi. Whether on 5.7.1916 partition was effected between Seetharamaiyar and Perumal Iyar and whether that partition deed registered on 8.7.1966 between the party?
vii. Whether the properties mentioned in 5.7.1916 partition deed properties are the suit properties?
viii. What other relief the plaintiffs is entitled for?
9. The Trial Court had marked Ex.A1 to Ex.A26 as plaintiff side documents and Ex.B1 to Ex.B10 as defendants 1 to 3 side documents. The PW1 to PW2 had deposed for plaintiff and DW1 to DW7 had deposed for defendants 1 to 3. The Trial after considering the pleadings, exhibits and deposition had considered the issues and allowed the suit. Aggrieved over the same, the defendants 1 to 3 had filed the present Appeal Suit.
10. This Court had formulated the following points for consideration:
i. Whether the genealogy stated by the plaintiff is right? ii. Whether, there is discrepancy in identification of the suit property?
17/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 iii. Whether the plaintif has title over the property? iv. Whether the plaintiff is in possession of the property? v. Whether the plaintiff’s property is in S.No.777B or S.No. 627/682?
11. The defendants had questioned the family tree of the plaintiffs. In fact, the defendant had gone to the extent of stating the plaintiff’s father’s name is Kuppu Iyer. And also stated that the said Perumal Iyer is having only son Ganapathy Iyer and Perumal Iyer was not having any brother by Sitaram Iyer. The said Perumal Iyer’s father is not Ganapathy Iyer and the said family tree was not established through any documents. The 3rd defendant deposed as DW1 and he also denies the family tree. This issue was considered by the Trial Court where in it is held that the 3rd defendant is not belonging to the Ganapathy Iyer family and he also doesn’t belong to the said community and therefore the 3rd defendant’s deposition is not believable and the documents submitted by the defendants 1 to 3 are not disproving the contention of the plaintiffs.
12. In order to ascertain the family tree this Court perused the Ex.A1 which is the partition deed dated 05.07.1916 and registered on 08.07.1916. In the said partition deed it has been stated the Perumal Iyer son of Ganapathy Iyer 18/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 as 1st party and his brother Sitaram Iyer as 2nd party are executing the partition deed. From this it is evident that one Ganapathy Iyer was having two sons, namely Perumal Iyer and Sitaram Iyer. In the said document it is further stated that the said Perumal Iyer had adopted Satyanarayanan son of Gopal Iyer and after adoption, his name is mentioned as Pe.Nee.Ganapathy Iyer and the full form is Perumal Neelakanta Ganapathy Iyer. It is also evident that while executing the document the said Pe.Nee.Ganapathy Iyer was aged 7 and he was a minor, hence he is represented by Perumal Iyer as father. It is also seen that the said Sitaram Iyer had executed the document for himself and his minor son Ganapathy Iyer who was also 7 years old. Further under exhibit A2, they said Perumal had mentioned in the Will that he had adopted the son on 07.02.1916 and the name of the adoptive son as Satyanarayan Iyer, Alias Neelakanta Ganapathy Iyer. The said partition deed ExA1 and the Will ExA2 was acted on and the parties are in possession and enjoyment of the properties as stated in the documents. Further the first plaintiff had deposed as PW1 had also confirmed the above family tree in his deposition. when the documents exhibit A1 and A2 confirms the family tree and when the plaintiffs had also deposed in consonance with the documents stated supra, the family Tree ought to be held as correct. Further the defendant had not submitted or proved through any documentary 19/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 evidence that the said family tree is incorrect. In such circumstances, the family tree ought to be confirmed as correct. Therefore, this court is confirming the genealogy / family tree as stated by the plaintiff as true and correct and the 1st point for consideration is held in favour of the plaintiffs.
13. The next contention of the defendants 1 to 3 is that the description of the property shown in Ex.A1, Ex.A2 and Ex.A3 is not matching with the description stated in the suit schedule property. On the perusal of the description of properties, it is seen the northern boundary is the Conservancy Lane and the Southern boundary is the North Car Street. All the three Ex.A1, Ex.A2 and Ex.A3 states the northern boundary as Conservancy Lane and southern boundary as North Car Street. Hence there is no discrepancy on the northern boundary and southern boundary. Now the eastern and western boundaries ought to be correlated. The contention of the plaintiff is that the suit property was subdivided among three persons, one has been allotted to the said Sitaram Iyer son of S.Ganapathi Iyer. The other portion has been allotted to Kodilinga Sankara Sastri son of Kodilinga Dhanaskodi Sastri and the third portion is allotted to the Perumal Iyer son of pe.Nee.Ganapathy Iyer. The property that was allotted to the said Kodilinga Sankara Sastri, presently the said property is with Rajamani which is on the eastern side. Infact there is no 20/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 dispute between the plaintiff and the defendants on the eastern side boundary of the property. On the western side, earlier the Udipi Chathiram property and the lane was shown in the document dated 18.12.1945. When the plaintiff had sub divided and sold a portion to the said Bhuvaneshwari daughter of Ganapathy Iyer and granddaughter of Seetharam Iyer, then her property is shown on the western boundary. The said Udipi is situated on further western side after Bhuvaneswari property. Therefore there is no discrepancy as alleged by the defendants. Further the defendants had not purchased any properties from the said three families namely, i. Ganapathy Iyer father of Perumal Iyer – Perumal Iyer adopted father of Pe.Nee.Ganapathy Iyer – Pe.Nee.Ganapathy Iyer father of Ramanathan (1st plaintiff) ii. Ganapathy Iyer father of Sitharam Iyer – Sitharam Iyer father of Ganapathy Iyer – Ganapathy Iyer father of Bhuvaneswari iii. Kodilinga Dhanashkodi Sastri father of Kodilinga Sankara Sastri.
who were / are having the properties from 1916, 1945 onwards. In such circumstances the defendants have no right to allege any discrepancy. If at all there is any discrepancies, it can arise among the aforesaid said three persons / families and not with the defendants.
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14. The said point for consideration may be analysed by tracing the defendants 1 to 3 documents, especially the additional document of Will dated 01.12.1964 executed by one Parvathavardhini Ammal. The defendants 1 to 3 had filed a petition to receive additional documents in C.M.P.(MD)No.7322 of 2024 and another petition to appoint advocate commissioner in C.M.P.(MD)No. 7323 of 2024. The plaintiff had filed counter wherein it is stated that the existence of the said Will dated 01.12.1964 executed by Parvathavardhini Ammal was not pleaded in the written statement and the said Will was not referred in the sale deed dated 11.10.2013 executed in favour of the defendants, hence the same cannot be relied on and prayed to reject the petition. Further stated even the Will executed by Atmarammaiyer was not filed by the defendants and it was marked through third parties.
15. It is seen that the Will dated 01.12.1964 which the defendants rely on is the parent document for the defendants. On perusal of the Will dated 01.12.1964 it is seen the said Parvathivardhini Ammal had executed the Will in favour of Atmarammaiyer. In the Will 26 items were listed in the schedule of properties and the properties are situated in various places like Thondi, Rameswaram covering various villages. Under Serial No.9 the property situated 22/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 in Rameswaram Town, North Car Street is described and the same is extracted hereunder:
”9.,uhNk];tuk; lTd; tlf;F uj tPjpapy; fpoNky; Xba NjNuhLk; tPjpf;Fk; tlf;F> c.Nfhgya;ah; tPl;Lf;Fk; fpof;F ff;$]; yaDf;Fk; vd; epyj;Jf;Fk; fz;izahj;Njth; nfhy;iyf;Fk; njw;F cLg;gp gpuhkzh;fs; rj;jpuk; fl;blk;
nfhy;iyf;Fk; Nkw;F ,jw;Fl;gl;l epyKk; mjpy;
fl;bapUf;fpw nfl;b kl;ilg;ghF $iuf;fl;L
Nfhg;Gf;fl;blKk; fPo;gf;fk; RtUk; nfhy;iyapy; fy;fl;L fpzh; xd;Wk; njd;id kuq;fSk; mlq;fpa njw;Fg;ghh;j;j tPL xd;Wf;F fpoNky; jr;R Kok; 6 (MW) njd;tly;
jr;Rkok; 61 (mWgj;jpxd;W) Nkw;gb nrhj;jpd; A+dpad; ek;gh; W 10 D6.” In the Will dated 01.12.1964 executed by Parvathivardhini Ammal, in the description of property it is stated that the property is situated in “W 10 D6”, which is the short form and which ought to be as “Ward 10 Door No.6”. The said Atmarammaiyer had got the property through the said Will is Door No.6. Then the said Atmarammaiyer ought to have executed the Will dated 31.12.1999 in favour of Sadaiyandi is for the said Door No.6. The Sadiyandi’s wife ought to have inherited the Door No.6 and not Door No.10. Then the claim of the defendant ought to be for Door No.6 and not Door No.10. Further the Will dated 31.12.1999 marked as Ex.B2 states that the said Sadaiyandi’s mother Muniammal was taking care of the said Atmarammaiyer and after her demise the said Sadaiyandi was taking care of him. Interestingly there is no schedule of properties at all in Ex.B2. The Will only states that the said Atmarammaiyer is 23/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 having properties in various villages and the same may be inherited by the said Sadaiyandi. Therefore this Court is of the considered opinion that the defendants’ 1 to 3 identification of property is wrong.
16. It is made clear that this court is only stating that the identification of Door No.10 is wrong. The Court is not granting any relief to the defendants that their property is in Door No.6. And the defendant ought to establish separately whether it is Door No.6 or some other property.
17. The next point for consideration is whether the plaintiffs have title and possession over the property. As held supra, the Ex.A1, A2 A3 would prove the title of the plaintiffs. On the other hand the defendants had produced the power of attorney dated 29.02.2012 marked as Ex.B6 and the sale deed dated 11.10.2013 marked as Ex.B7. In the Ex.B7 sale deed it only states the concerned documents are handed over to the defendants and it is not specifically states what are the concerned documents which are handed over and it is vague statement. The defendants had not produced any documents especially the Will dated 01.12.1964 and the Will dated 31.12.1999 at the time of filing the written statement. The Will dated 31.12.1999 is filed as Ex.X2 as witness document and the defendants are not in possession of the said 24/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 document. As rightly held by the trial court, the defendants had not produced any original documents and even in their sale deed, it has not been stated. The relevant portion of the Trial Court judgement is extracted here under “28. 1 Kjy; 3 gpujpthjpfs; jug;gpy;> gh;tj th;j;jpdp mk;khs;
RtPfhuk; vLj;J tsh;j;J te;j Mj;kuhka;ah;> rikahz;bf;F capy; vOjp itj;jhfr; nrhy;yg;gl;L 31.12.1999k; Njjpa capy; efy; rhl;rp rhd;whtzk; 2 Mf Fwpaplg;gl;Ls;sJ. ,e;j capy; rhrd efypy; nrhj;J tptuk; vJTk; fhl;lg;gltpy;iy. ,jpy; nghJthf> ,uhNk];tuk; tUtha; fpuhkj;jpYk;> ghk;gd; tUtha;
fpuhkj;jpYk; cs;s nrhj;ijg; nghWj;J capy; vOjp itj;jpUg;gjhfr; nrhy;yg;gl;Ls;sJ. nrhj;J tptuk;
vJTk; ,y;yhj epiyapy; ,e;j capy; rhrdj;jpd; mbg;gilapy; rikahz;bNah mtuJ thhpRfNsh ve;jg; gaDk; milaf;
$bajhf ,y;iy. jhthr; nrhj;ij Fwpj;J Fwpg;ghf capypy;
vJTk; ,y;yhj epiyapy; ,e;j capy; jhthr; nrhj;ijg;
nghWj;J Vw;gl;ljhf ,y;iy. NkYk;> ,e;j capiy ep&gpf;f rhl;rpfs; ahUk; tprhhpf;fg;gl;ljhf ,y;iy. vdNt> rhl;rp rhd;whtzk; 2 xU ep&gpf;fg;gl;l Mtzkhf ,y;iy. NkYk;> thjpfs; jug;gpy; nrhy;tJ Nghy; fl;rp nra;Ak; gpujpthjpfs; jug;gp;y; rikahz;b> Mj;kuhka;ahpd; jj;Jg; Gj;jpud; vd;gjhf nrhy;yg;gLfpwJ. Mdhy; rhl;rp rhd;whtzk; 2y;> ve;j ,lj;jpYk; Mj;kuhka;ah;> rhikahz;bia jj;Jg; Gj;jpud; my;yJ RtPfhu Gj;jpudhf Vw;wpUe;jhh; vd;gjhf vJTk;
nrhy;yg;gltpy;iy. rhl;rp rhd;whtzk; 2d; mrYk;
Kd;dpiyg;gLj;jg;gltpy;iy. vjph;tof;Fiuapy; gj;jp 33y;
Mj;kuhka;ah;> rhikahz;bf;F 13.12.1999k; Njjpa capy;
%ykhf ghj;jpag;gLj;jpf; nfhLj;J tpl;ljhf cs;sJ. rhl;rp rhd;whtzk; 2> 31.12.1999k; tUlj;jpa capypd; efyhf cs;sJ. Mf vjph;tof;Fiuapy; fz;l capYf;Fk;> rhl;rp rhd;whtzk; 2f;Fk; xj;j jd;ik ,y;iy. rhl;rp rhd;whtzk; 1 MdJ 17.03.1967k; Njjpa fpiuag; gj;jpuj;jpd efyhf cs;sJ. fl;rp nra;Ak; gpujpthjpfs; jug;G gb Mj;kuhka;ah; rpy nrhj;Jf;fis fpiuak; nfhL;j;jpUg;gjhf itj;Jf; nfhz;lhYk; $l mjdhy; jhthr; nrhj;J mtUila nrhj;J vd;gjhfNth> jhth nrhj;Jk;> gh;tj th;j;jpd; mk;khspd; fzth; uhkehjDf;F fpilj;j nrhj;J vd;gjhfNth KbTf;F te;J tpl KbahJ. vdNt> rhl;rp rhd;whtzk; 1d; mbg;gilapy; ghh;;f;ifapYk;> 1 Kjy; 3 25/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 gpujpthjpfspd; jug;G tof;F ep&g;gpf;fg;gl;ljhf ,e;j kd;wk; fUjtpy;iy.”
18. Even though the defendant had produced the original Will dated 01.12.1964 at the appellate stage, which is an unregistered document, the same only states Ward No.10 and Door No.6. The said Will does not states the survey number and patta number etc. Therefore the said Will dated 01.12.1964 is not supporting the case of the defendants. Therefore, this Court is of the considered opinion that the title of the property is with the plaintiffs and not with the defendants.
19. As far as the possession is concerned, the plaintiffs had produced Ex.A9 Patta issued to the first plaintiff in the year 1995. Further the documents marked as Ex.A4 and A5 are the house tax receipts issued for the Door Nos.10 and 10A stands in the name of plaintiffs. Similarly Ex.A10 and A11 are electricity receipts paid for the Service Connection No.82 and 516 stands in the name of the plaintiffs. Further even according to the defendants 1 to 3 they had purchased the property on 11.10.2013 i.e. in the year 2013. The power of 26/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 attorney deed was executed in favour of the 3rd defendant is on 29.02.2012. When the plaintiffs are having possession right from 1995 onwards, then it has to be concluded the plaintiffs are having possession even prior to the sale deed executed in favour of the defendants. Therefore, this Court is of the considered opinion that the plaintiffs had proved their possession from 1995 onwards and the said point for consideration is held in favour of the plaintiff.
20. Interestingly the defendants had raised a plea that “for the new Door No.18/10-1 the electricity service connection number is not ‘82’, but the electricity service connection number is 307-001-082 and 05-307-001-516” and the said plea of the defendants is frivolous and erroneous. Earlier the Electricity Board had assigned service connection numbers based on the number of connections from the electricity poles erected to the area. Later on, when the connections are digitized nine-digit numbers are assigned. In the present case the earlier connection number was “82”, when the connection was digitized, the number assigned as 307-001-082. The second connection i.e. 05-307-001-516 ought to have been granted after digitization. Hence this plea of the defendants is meaningless and the said plea is rejected.
21. The next point for consideration raised by the defendant is that when 27/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 the plaintiff is claiming right over the S.No.627/682, then they cannot claim right over the S.No.777B since both the survey numbers cannot be adjacent to each other and they ought to be far away from each other. But the plaintiff is claiming a portion of the property under Patta 1089 in S.No.777B and a portion of the property under Patta No.782 situated in S.No.627/682. In order to consider this, this Court perused the Town Survey Map marked as Ex.A25. It is seen the said S.No.627/682 is situated on the southern side and the S.No.777B is situated immediately above the S.No.627/682. Therefore, it is possible, the portion is lying in one survey number and the another portion is lying on the other survey number. The rough sketch is shown below and the same is drawn only to understand the position of the said survey numbers and it is not drawn to the measurement.
S.No.777A S.No.777B
S.No.680 S.No.681 S.No.682/1 S.No.682
From the above sketch it is evident the S.No.682 is not far away from the S.No. 777B as alleged by the defendants. Therefore, the contention of the defendants the S.No.777B is far away and a portion of the suit property cannot be in S.No. 28/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 682 has no ground at all and the same is rejected.
22. All the points for consideration are answered in favour of the plaintiff and against the appellants / defendants 1 to 3. Hence the Appeal Suit is liable to be dismissed and accordingly dismissed. The judgment and decree passed by the Trial Court in O.S.No.46 of 2013 on the file of the Principal District Judge, Ramanathapuram is confirmed.
23. The plaintiffs/respondents had submitted that the defendants/appellants had committed Contempt of Court. The plaintiffs had succeeded in the suit and a decree for permanent injunction was granted by the Trial Court. In the Appeal Suit there is no interim stay against the impugned decree for permanent injunction. Inspite of the permanent injunction, the appellants had continually harassed and victimised the plaintiffs by disobeying the judgment of the Trial Court. In order to consider this plea this Court had perused the events. As per the affidavit dated 12.12.2013 filed by the 1 st defendant / 1st appellant Nagendran, the defendants 1 and 2 are in possession of the suit property right from 2013 onwards and the defendants are running retail sale of food and beverages from 18.06.2013 which is evident from MSME 29/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 Certificate in UDYAM Registration Certificate under Regn.No.UDUAM- TN-19-0003687. It is seen that the sale deed was executed only on 11.10.2013. But even before the execution of sale, the defendants had started running the business in the said premises which is admitted in their own affidavit. Hence from this it is evident that the defendants had trespassed forcibly inside the suit premises even before the alleged purchase, therefore the allegation by the plaintiffs against the defendants are true. For arguments sake, even if the defendants had purchased the property and if somebody is already residing in the premises, then the defendants cannot forcibly evict them. In the present case, the plaintiffs being the owner of the property are already residing in the suit property, but the defendants in order to grab the property had trespassed forcibly. Further when the plaintiff’s wife was residing inside the premises and the defendants had locked from outside and the 1st plaintiff had filed criminal complaint. The said act of the defendants 1 and 2 amount to criminal offence. Further it is seen that the Trial Court had passed the judgment and decree on 05.06.2015 granting permanent injunction against the defendants 1 to 3 and the defendants had filed the present Appeal Suit and there is no interim stay of permanent injunction. But the defendants had put up shed in the front portion of the suit premises and is running a tea shop, which is evident from the 30/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 photograph dated 18.11.2023. The defendants had admitted that they are drawing electricity supply to the tea shop from the plaintiff’s electricity connection. The act of drawing electricity connection granted for residential purpose and using the same for commercial purpose of running tea shop would amount to theft of energy or unauthorized use of energy. Even as per the defendants affidavit he had obtained registration certificate from MSME to the suit premises without any sale deed for the said premises. Over and above had used the plaintiff’s electricity connection for running the tea stall. Further the defendants had put up shed by blocking the frontage especially free ingress and egress to the suit property would amount to criminal act. The aforesaid acts of the defendants 1 to 3 would prove that the defendants 1 to 3 are not law abiding citizen. And also they have committed contempt of court. Therefore for the said reasons this Court is dismissing the Appeal Suit with cost of Rs.25,000/- payable to the plaintiff. This Court is not inclined to punish the defendants 1 to 3 for contempt of court but inclined to compensate the plaintiff and therefore the plaintiff is entitled to claim mesne profits and / or compensation for the unauthorised use of his house and unauthorised use of electricity connection under Order 20 Rule 12 of CPC.
24. For the reasons stated supra the Appeal Suit is dismissed with costs of 31/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 Rs.25,000/- to the plaintiffs/respondents 1 and 2 payable by the appellants/defendants 1 to 3. The plaintiff is entitled to claim mesne profits and / or compensation for the unauthorised use of his house and unauthorised use of electricity connection. The C.M.P.(MD)No.7322 of 2024 for additional document is allowed and C.M.P.(MD)No.7323 of 2024 is closed.
25. It is seen that the second respondent herein has died and the legal heirs of the deceased second respondent are the parties to the present appeal as respondents 3 to 8. The learned counsel for the first respondent filed a memo, dated 16.03.2020 to that effect. The said memo is recorded.
14.10.2024 NCC:yes/no Index:yes/no Internet:yes/no SN To:
1.ThePrincipal District Court, Ramanathapuram.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, 32/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 Madurai.
S.SRIMATHY, J., SN A.S.(MD)No.203 of 2015 14.10.2024 33/34 https://www.mhc.tn.gov.in/judis A.S(MD)No.203 of 2015 34/34 https://www.mhc.tn.gov.in/judis