Nainar (Died) v. Sekar

JUDGMENT The plaintiff in the suit is the appellant herein. The suit is for declaration of title and injunction. The trial Court dismissed the suit. The first appeal filed by the plaintiff was partly allowed by granting a decree for declaration of title and injunction in respect of a property covered by S.No.366/4 with an extent of

0.00.38 hectares. Aggrieved by the same, the plaintiff is before this Court.

2.According to the plaintiff, the suit property originally belonged to one Dharmar and he sold the suit property to one Chelliah @ Sankaralinagm and his wife Parvathy Ammal under a sale deed, dated 23.07.1955. Thereafter, the said Chelliah @ Sankaralinagm and Parvathy Ammal sold the suit property to the plaintiff on 05.04.1969. It was claimed by the plaintiff that he had been in possession and enjoyment of the suit property by paying land tax to the Government from that date onwards. The plaintiff also claimed right over the suit property by adverse possession. It was further stated that the defendant had no right or claim over the suit property and he attempted to interfere with the possession of the southern vacant portion of the suit property and hence, the plaintiff was constrained to file a suit for declaration of title and injunction.

3.The defendant had filed his written statement denied the measurements mentioned by the plaintiff. It was the case of the defendant that the plaintiff was entitled to only 0.00.38 hectares of property in village S.No.366/4 and the claim made by the plaintiff more than the extent mentioned in his patta was not maintainable. It was further averred in the written statement that the property lies east and south of the plaintiff's property with S.No.366/5 belonged to Vadakathiamman Temple and the same has been in possession and enjoyment of worshipers of the said Temple. It was the specific case of the defendant that neither the plaintiff nor his predecessor-in-interest enjoyed the property with the measurement found in the sale deed in favour of the plaintiff. The defendant also claimed that the plaintiff had no right or possession over the property in S.No.366/5 belonged to the Temple and the suit filed by the plaintiff without impleading the worshipers of the Temple was not maintainable.

4.Before the trial Court, the plaintiff was examined as PW-1 and three documents were marked on his side as Ex-A1 to Ex-A3. On behalf of the defendant, he was examined as DW-1 and one independent witness was examined as DW-2 and three documents were marked as Ex-B1 to Ex-B3. The Advocate Commissioner's report and plan were marked as Ex-C1 and Ex-C2.

5.The trial Court, on appreciation of evidence available on record, came to the conclusion that the plaintiff failed to prove his title over the suit property and hence, dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.76 of 2004 on the file of the Principal Subordinate Court, Tenkasi. The first appellate Court found that the plaintiff was entitled to the relief prayed for in respect of a lesser extent situated in village S.No.366/4 with an extent of 0.00.38 hectares. Not satisfied with the limited decree granted by the first appellate Court, the plaintiff has come before this Court by way of this second appeal.

6.The learned Counsel appearing for the appellant submitted that the plaintiff has purchased the suit property under Ex-A2 with specific measurements and hence, the Courts below ought not to have refused the relief of declaration of title and injunction based on the lesser extent shown in the revenue document by ignoring the measurements found in the title document of the plaintiff. The learned Counsel further submitted that the title documents of the plaintiff in Ex-A1 and Ex-A2 would prevail over the revenue documents produced by the defendants under Ex-B1 to Ex-B3.

7.A perusal of Ex-A2, the sale deed in favour of the plaintiff would suggest that he purchased a property with the following description: "jgrpy; fz;l Ruz;il rg;j fPonts;sfhy; fpuhkj;jpy; `hp[d; njUtpYs;sJk; fPo nts;sfhy; gQ;rhaj;Jg;Nghh;L 3tJ thh;bYs;sJ kid tPl;Lf;Foy; khuhe;ij fhy;tha;fiuf;Fk; fpof;F 6.ePh;kil thp.3y; d;. w; fbe;jy; fhYf;F Kd;gf;fKs;s eil ghijf;Fk; njw;F fhy nghUkhs; kid tPl;Lf;Fk; Nkw;F ej;jj;J khld; kidf;Fk; tlf;Fkhd kid fpoNky; jr;RKok; 10.gj;Jk; njd; tly; jr;RKoyk; 13.gjpd;%d;Wk; cs;s kidAk;"

8.A perusal of the description of the property found in the title deed of the plaintiff would suggest that no survey number is mentioned in the title document. When the plaintiff was examined as PW-1, he clearly admitted the survey number of the property on the south of his property is S.No.366/5. He also admitted that he was given patta in respect of S.No.366/4 based on his possession. Further, he deposed that earlier the property on the south of his property belonged to one Natha Maadan and the Vadakathiamman Temple, which is situated on the southern side, was a family Temple of Natha Maadan. The relevant portion of PW-1's evidence reads as follows: "vd;Dila nrhj;jpw;F njw;F mUfpy; xU tlf;fj;jpak;kd; Nfhtpy; cs;sJ. me;j Nfhtpy; ej;jJkhld; FLk;gj;jpw;F ghj;jpag;gl;l Nfhtpy;jhd;. me;j Nfhtpy; Gwk;Nghf;fpy; ,y;iy. gl;lh ,lj;jpy; jhd; cs;sJ. gl;lh ek;gh; njhpahJ. Nfhtpy; ,Uf;ff; $ba ,lj;jpy; rh;Nt ek;gh; njhpahJ. me;j NfhtpYf;F nfhil tpohVJk; fpilahJ. me;j Nfhtpypy; jPgk; VJk; Vw;WtJ fpilahJ. me;j topahf Nghff; $bath;fs; me;j Nfhtpiy Fk;gpLthh;fs;. 1982f;Fgpd;dh;jhd; me;j Nfhtpypy; rpiy itf;fg;gl;Ls;sJ. mjw;F Kd;dhy; rpiy fpilahJ. gpujpthjp Nghl;Ls;s vjph;tof;Fiuia gbj;Jg;ghh;j;Njd;. vd;Dila nrhj;jpw;F fpof;fpYk;> njw;fpYk; 366/5 nrhj;J ,Ug;gjhf fhl;bAs;Nsd;. vd;Dila mDgtj;jpw;F jFe;jhw;Nghy> gl;lh nfhLj;Js;shh;fs;. vd;Dila ngaUf;F toq;fg;gl;l rh;Nt 366/4 gl;lh nfhLj;Js;shh;fs;. vdf;F toq;fg;gl;l ej;jk; epythpj;jpl;l J}a mlq;fy; gjpNtL efy; gp.j.rh.M.1 vd;Dila mDgtj;jpYs;s nrhj;jpw;F jPh;it NghLfpNwd;. vd;Dila ,lj;jpw;F njw;F gf;fk; ej;JkhlDf;Fk;

Nrfh;

tifauhTf;Fk;

nrhe;jkhd gl;lh ,lk;. mth;fSila ,lj;jpy; vdf;F chpik VJk; fpilahJ.

ehd;

nrhy;yf;$ba

Nfhtpy; mth;fSila ,lj;jpy;jhd; 366/5y; ,Uf;fpwJ."

9.A perusal of PW-1's evidence would suggest that the plaintiff clearly admitted that he was given patta in respect of S.No.366/4 based on the property in his possession. He also further admitted that the Vadakathiamman Temple, which is situated on the southern side of the suit property, was constructed in the property of Natha Maadan, which lies in S.No.366/5. The learned Counsel for the appellant vehemently contended that at the time of Natham Nilavari Survey, a portion of the property belonged to the plaintiff was carved out and annexed with the survey number on the southern side of the suit property and therefore, the plaintiff was given patta with a lesser extent. However, PW-1 in his evidence clearly admitted that patta for S.No.366/4 was given to the plaintiff only based on his possession. He also clearly deposed that he was not claiming any right over the property of Natha Maadan, where the Temple is situated.

10.By taking into consideration the well pronounced admission of PW-1, the first appellate Court came to a definite conclusion that the plaintiff was entitled to declaration of title and injunction in respect of lesser extent of property covered by S.No.366/4. The title document does not contain any survey number. Based on the southern boundary description mentioned in the title document of the plaintiff and also the admission of PW-1, the first appellate Court came to the conclusion that the plaintiff was entitled to declaration and injunction only in respect of a lesser extent available in S.No.366/4.

11.The said factual conclusion reached by the first appellate Court is based on proper appreciation of evidence available on record and the same is not vitiated by any perversity in appreciation of evidence. Therefore, I do not find anything to interfere with the factual findings reached by this Courts below. Finding no substantial questions of law, the Second Appeal stands dismissed. No costs.

25.04.2024 NCC : Yes / No Index : Yes / No Internet : Yes / No cmr To

1.The Principal Subordinate Judge, Tenkasi.

2.The Additional District Munsif, Tenkasi.

3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai. S.SOUNTHAR

, J.

cmr

25.04.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.04.2024 CORAM: THE HONOURABLE MR.JUSTICE S.SOUNTHAR 1.Nainar (Died) 2.Petchiammal 3.Udayakumar 4.Logammal 5.Rathi 6.Kannan 7.Devika ...Appellants -Vs- Sekar ... Respondents (Appellants 2 to 7 were brought on record as legal representatives of the deceased first appellant vide order of this Court, dated 25.04.2016.) PRAYER : Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree passed in A.S.No.76 of 2004, dated 25.02.2005 on the file of the Principal Subordinate Court, Tenkasi confirming the judgment and decree in O.S.No.237 of 2001, dated 16.02.2004 on the file of the Additional District Munsif Court, Tenkasi. For Appellants : Mr.V.Meenakshi Sundaram for Mr.C.Vakeeswaran For Respondent : No appearance ****