V.Cehlla Kannu Thevar, v. Nadar Uravinmurai Sangam,

JUDGMENT This second appeal has been filed challenging the judgment and decree of the lower appellate Court, namely, Sub Court, Kovilpatti dated

27.01.2015 in A.S.No.249 of 1998. The fourth plaintiff representing the temple in the suit in O.S.No.84 of 1994 on the file of the District Munsif Court, Kovilpatti is the appellant herein. The defendants in the suit are the respondents 1 and 2 herein. In the forthcoming paragraphs, the parties are described as per their litigative status in the suit.

¶2The suit was filed for declaration, permanent injunction and also for mandatory injunction in respect of two items of the properties, namely Schedule I and Schedule II. A written statement was also filed by the defendants denying the plaintiff's claim in respect of item No.1 of the suit schedule properties. The defendants had claimed adverse possession. However, in respect of Item No.2 of the suit schedule properties, the defendants claimed that they are the absolute owners of the same.

¶3Based on the pleadings of the respective parties, issues were framed by the trial Court. Before the trial Court, the plaintiffs filed 15 documents, which were marked as Exs.A1 to A15 and one witness was examined, namely Varadharajulu Naidu as P.W.1. On the side of the defendants, five documents were filed, which were marked as Exs.B1 to B5 and two witnesses were examined on their side, namely, Krishnasamy Nadar as D.W.1 and Mariyasoosai Thalaivar as D.W.2. Two Court exhibits were marked namely Advocate Commissioner's report as well as plan as Exs.C1 & C2 respectively. The trial Court decreed the suit in entirety in favour of the plaintiff in respect of Item No.1 and Item No.2 of the suit schedule properties and the declaratory relief as well as the permanent injunction relief was granted in favour of the plaintiff.

¶4Aggrieved by the judgment and decree dated 08.12.1997 passed in O.S.No.84 of 1994 by the District Munsif Court, Kovilpatti, the defendants preferred the first appeal in A.S.No.249 of 1998 on the file of the Sub Court, Kovilpatti. The lower appellate Court, by its Judgment and Decree dated 27.01.2015 partly allowed the appeal by dismissing the suit filed by the plaintiff in respect of Item No.2 of the suit schedule properties and by confirming the decree of the trial Court passed in favour of the plaintiff in respect of Item No.1 of the suit schedule properties.

¶5Aggrieved by the Judgment and decree passed by the lower appellate Court dated 27.01.2015 with regard to the dismissal of the suit in respect of Item No.2 of the suit schedule properties, this Second Appeal has been filed. This Court, on 19.06.2017, admitted the Second Appeal by formulating the following substantial questions of law: "a) Whether the Lower Appellate Court is correct in reversing the Judgment and Decree of dismissal, in so far as the Item No.2 of the suit property is concerned, against the judgment of the Trial Court? b) Is it not an error apparent in law, as the Lower Appellate Court neglected to apply the correct principles of law, on Burden of Proof/Presumption, under the Indian Evidence Act? c) Whether the Lower Appellate Court is correct, in allowing the Appeal Suit, brushing aside the available reasonable evidence, as per Ex.A4, Settlement Record of the Revenue Department, in favour of the 1" Appellant? d) Is it not an error of law committed by the Lower Appellate Court in neglecting to consider the legal effect of a Revenue Settlement, when the same had been acted upon/implemented for the past several decades? e) Whether the Lower Appellate Court is correct in allowing the Appeal Suit, when the appellants herein had established their case by producing necessary oral and documentary evidence, before the Trial Court, which impelled the Trial Court to dismiss a part of the suit claim? f) Whether the Lower Appellate Court is correct to in decreeing the appeal, by rejecting Ex.A2 and not appreciating Ex.A4, which are Government records?"

¶6At the outset, the learned senior counsel appearing for the respondents / defendants would submit that the lower appellate Court, by its judgment and decree, dated 27.01.2015 in A.S.No.249 of 1998 has rightly given a finding that the defendants are entitled to 32 cents as per Ex.B1 in Item No.2 of the suit schedule properties.

¶7The learned counsel appearing for the appellant, on instructions would also submit that the plaintiff has no grievance, if the defendants restrict their ownership only in respect of 32 cents in Item No.2 of the suit schedule properties. He would submit that if the interest of the plaintiff is protected in respect of remaining extent of the land in S.No. 78/1B, the plaintiff will be satisfied.

¶8When a categorical finding has been given by the lower appellate Court in Paragraph No.24 of the lower appellate Court Judgment dated 27.01.2015 passed in A.S.No.249 of 1998 that the defendants are entitled to 32 cents in Item No.2 of the suit schedule properties, which is extracted hereunder: "24.vdNt 2k; jgrpy; nrhj;J KOtJk; thjpfSf;Fg; ghj;jpag;gl;lJ vd tpsk;Gif nra;J tprhuiz ePjpkd;wk; gpwg;gpj;Js;s jPh;g;G kw;Wk; jPh;g;ghiz uj;J nra;aj;jf;fJ vd;W jPh;khdpf;Fk;> cah;ePjpkd;w cj;juTg;gb gpujpthjpfs; gp.rh.M.1 gbahd 32 nrd;l; g+kpia Gy vz;.78/1gp-f;Fs; tlgf;fj;jpy;

,Ug;gjhf

Urg;gpj;jpUg;gjhy; mijg;nghWj;J

kl;Lk;

,e;j

Nky;KiwaPL mDkjpf;fj;jf;fJ vd;Wk; ,e;j ePjpkd;wk; KbT nra;J ,e;j vOtpdhTf;F tpilaspf;fg;gLfpwJ.

25.Kbthf> gp.rh.M.1 gbahd 32 nrd;l; g+kp Gy vz;.78/1gp-f;Fs; tlgf;fj;jpy; ,Ug;gjhf jPh;khdpj;J mijg;nghWj;J

,e;j

Nky;KiwaPL mDkjpf;fg;gLfpwJ. 2k; jgrpy; nrhj;J KOtJk; thjpfSf;Fg; ghj;jpag;gl;lJ vd tpsk;Gif nra;J tprhuiz ePjpkd;wk; gpwg;gpj;Js;s jPh;g;G kw;Wk; jPh;g;ghiz uj;J nra;J jPh;g;gspf;fg;gLfpwJ. mtuth; nryTj;njhifia

mtuth;fNs

Vw;Wf;nfhs;s Ntz;Lnkd;W cj;jutplg;gLfpwJ." and that too when the plaintiff has categorically admitted before this Court through their counsel that the defendants are entitled to extent of 32 cents in Item No.2 of the suit schedule properties and the learned Senior Counsel appearing for the respondents / defendants has also submitted before this Court, on instructions that the defendants are restricting their ownership claim only to the extent of 32 cents in Item No.2 of the suit schedule properties, this Court is of the considered view that this Second Appeal can be disposed of in the following terms:

(a) The respondents / defendants are entitled to claim ownership only in respect of 32 cents on the northern side of S.No.78/1B, which forms part of Item No.2 of the suit schedule properties;

(b) In respect of remaining portion of the land in S.No.78/1B, the plaintiff is the absolute owner, which includes the entire Item No.1 of the suit schedule properties as well as a portion of Item No.2 of the suit schedule properties excluding the 32 cents owned by the respondents / defendants. The substantial questions of law referred to supra formulated by this Court at the time of admission by this Court to the appeal referred to supra are answered accordingly.

¶9In the result, this Second Appeal is disposed of. There shall be no order as to costs.

19.04.2023 Index : Yes / No NCC : Yes / No Sm TO:

1.The Sub Court, Kovilpatti.

2.The District Munsif, Kovilpatti.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

ABDUL QUDDHOSE, J.

Sm Dated:

19.04.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.04.2023 CORAM: THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE V.Chella kannu thevar ... Appellant /Vs./ 1.Nadar Uravinmurai Sangam, Represented by its Secretary and the President. 2.Hindu Nadar Middle School, Settikurutchi, Represented by its Manager. 3.A/m. Veilukandhamman Kovil Settikurutchi, Settikurutchi Village, Kovilpatti Taluk, Tuticorin District. 4.S.Ayyalusamy 5.V.Karthikeyan 6.V.Meenatchi ... Respondents P RAYER : Second Appeal filed under Section 100 of the Civil Procedure Code to set aside the judgment and decree passed in A.S.No.249 of 1998 on the file of the Sub Court, Kovilpatti, dated 27.01.2015 reversing the judgment and decree passed in O.S.No.84 of 1994 on the file of the District Munsif, Kovilpatti, dated 08.12.1997. For Appellant : Mr.S.Kadarkarai For Respondents : Mr.B.Saravanan Senior Counsel for Mr.S.Thiruppathi