S.A(MD)No.68 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.04.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)No.68 of 2014
and
M.P(MD) No.1 of 2014
Vemburaj ...Appellant
-Vs-
1.Mahesh Gunasekaran
2.Nataraja Pillai
3.Palanisamy
4.Kalaimuthu ... Respondents
PRAYER : Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 20.03.2012 in A.S.No.29 of
2011 passed by the learned District Judge cum Additional Sub Judge,
Thoothukudi, dated 20.03.2012 confirming the decree and judgment in O.S.No.
608 of 2007 passed by the learned Principal District Munsif, Thoothukudi, dated
30.06.2010.
For Appellant : Mr.D.Saravanan
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S.A(MD)No.68 of 2014
For R1, R2 & R4 : Mr.G.Mohankumar
For R3 : Mr.D.Nallathambi
JUDGMENT
The plaintiff in the suit is the appellant. He filed a suit for declaration of
title, recovery of possession and for mandatory injunction to remove the
construction in the suit property. The suit was dismissed by the trial Court and
the findings of the trial Court were affirmed by the first appellate Court.
Aggrieved by the concurrent findings, the appellants is before this Court.
2.According to the plaint averment, the suit property originally
belonged to one Rengasamy Naickar and he sold the same to plaintiff under a
registered sale deed, dated 30.11.1981. The plaintiff has been in possession and
enjoyment of the property by changing the revenue records in his name from the
date of his purchase. The defendants without having any manner of right
trespassed into the suit property and put up a house. The plaintiff, after acquiring
knowledge about the same, objected the encroachment by the defendants by
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making a police complaint. The plaintiff also issued a lawyer notice directing
the defendants to hand over the possession and the same was not acceded to.
Hence, the plaintiff was constrained to file a suit for the aforesaid relief.
3.The defendants filed the written statements denying the title of
Rengasamy Naickar, who allegedly sold the property to the plaintiff. The
defendants also denied the alleged possession of the plaintiff over the suit
property from the date of purchase by him from Rengasamy Naickar. It was
further pleaded by the defendants that 1 Acre 42 cents of land in suit Survey No.
511/1 originally belonged to one Thatha Venkata Krishnappa Naicker and after
his death, his children filed a suit for partition in O.S.No.276 of 1980, on the file
of Sub Court, Tuticorin and the said suit ended in a compromise decree. Under
the compromise decree, 1 Acre 42 cents in the suit survey number was allotted to
the share of one of the daughters of Venkata Krishnappa Naicker, namely,
Rengammal. The said Rengammal sold the property to various persons and the
property changed hands many time and the defendants are the purchasers of lands
in the suit survey number. The defendants also denied the boundary description
found in the plaint and sought for dismissal of the suit.
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S.A(MD)No.68 of 2014
4.The trial Court, on consideration of oral and documentary evidence
available on record, came to the conclusion that the plaintiff failed to establish his
title over the suit property and dismissed the suit. Aggrieved by the same, the
plaintiff filed an appeal in A.S.No.29 of 2011, on the file of learned District Judge
cum Additional Sub Judge, Thoothukudi. The first appellate Court also affirmed
the findings of the trial Court. Aggrieved by the same, the plaintiff is before this
Court.
5.At the time of admission, this Court formulated the following
substantial questions of law by order dated 03.02.20214:-
(a) Whether the Courts below are right by rejecting
the suit of appellant on the basis of Ex.B2, B3 and B4, wherein
the vendor of appellant is not a party?
(b) Whether the Courts below has erred by piecemeal
appreciation of evidence rather than in entirety?
(c)Whether the Courts below are right in dismissing
the suit, when the suit property I S.No.511/1 were included only
in final decree proceedings which strikes at the root of Ex.B2?
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S.A(MD)No.68 of 2014
6.The learned counsel for the appellant submitted that the suit property
was purchased by the appellant/plaintiff under a registered sale deed from its
original owner Rengasamy Naicker and he got the suit property under partition
deed, dated 29.08.1974 marked as Ex.A10. The sale deed in favour of the
plaintiff was marked as Ex.A1. Thus, relying on Ex.A1 and Ex.A10, the learned
counsel for the appellant vehemently contended that the title of plaintiff was
proved and the same has been overlooked by the Courts below.
7.It is seen from the judgment and decree passed by the trial Court that
based on Ex.A10-partition deed, the plaintiff's vendor Rengasamy Naicker filed a
suit for declaration of title in O.S.No.138 of 1985, on the file of learned Principal
District Munsif, Tuticorin and the same was dismissed. He also filed an appeal
challenging the dismissal of the suit. The first appeal was also dismissed. The
certified copy of the decree passed in O.S.No.138 of 1985 was marked as Ex.B4
and the certified copy of the judgment passed in A.S.No.12 of 1990, on the file of
the Sub Court, Tuticorin, was marked as Ex.B5. The Ex.B5 establish that the
judgment of the trial Court dismissing the declaration suit filed by the plaintiff's
vendor Rengasamy Naicker was confirmed by the first appellate Court.
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S.A(MD)No.68 of 2014
Therefore, Ex.B4 and Ex.B5 establish that the plaintiff's vendor Rengasamy
Naicker's title was negatived by the competent Court and thereafter, he sold the
suit property to the plaintiff under Ex.A1. When the plaintiff's vendor title was
already negatived by the competent Civil Court, the plaintiff, who is claiming
title under Rengasamy Naicker, is not entitled to file another suit for declaration
of title and consequential relief. Therefore, the conclusion reached by the Courts
below that the plaintiff failed to establish his title over the suit property is based
on proper appreciation of evidence available on record.
8.It is also seen that Venkata Krishnappa Naicker purchased 1.42 acres
of land in the suit survey number under Ex.B10. Thereafter, the heirs of Venkata
Krishnappa Naicker filed partition suit in O.S.No.276 of 1980, on the file of Sub
Court, Tuticorin. The compromise decree passed in O.S.No.276 of 1980 has been
marked as Ex.B3. Under Ex.B3, 1.42 acres of land in the suit survey number was
allotted to the share of Venkata Krishnappa Naicker's daughter Rengammal. The
defendants are claiming right under Venkata Krishnappa Naicker. It is also seen
that the heirs of Venkata Krishnappa Naicker were not made parties to the
partition deed under Ex.A10. Even otherwise, as mentioned earlier, subsequent to
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S.A(MD)No.68 of 2014
Ex.A10 partition deed, the suit for declaration of title was filed by the plaintiff's
vendor Rengasamy Naicker and the same was dismissed. In such circumstances,
the plaintiff is not entitled to reagitate the matter by filing a suit for declaration of
title after purchasing the property from Rengasamy Naicker.
9.In view of the discussion made earlier, all the substantial question of
law framed at the time of admission were answered against the appellant and in
favour of the respondents. Accordingly, this Second Appeal stands dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
30.04.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
cp
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S.A(MD)No.68 of 2014
S.SOUNTHAR , J .
cp
To
1.The District Judge cum Additional Sub Judge,
Thoothukudi.
2.The Principal District Munsif,
Thoothukudi.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
S.A(MD)No.68 of 2014
30.04.2024
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