Dismissed

Paramasamy Thevar(Died), v. Raju @ Kurumba Thevar

Madras HC10 Apr 2014SA(MD)/284/2014

Case brief

AI extract

What is this about?

This second appeal challenges a decree in a suit for declaration and possession. The court held the appeal fails as the appellant failed to prove title, while the respondent established ownership via deed Ex.B.1.

What did the court decide?

The second appeal is dismissed. The judgment and decree passed by the First Additional Subordinate Judge, Madurai, dated 18/2/2004, are confirmed. No costs.

Paramasamy Thevar(Died), Vs Raju @ Kurumba Thevar — Property and Title | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 10/4/2014

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CORAM

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THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA

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Second Appeal (MD) No.284 of 2014

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Paramasamy Thevar (died)

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P. Packiam

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P. Natarajan

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Chellakannu

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Dhanikodi

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Murugan

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Nagarajan ... Appellants/LR of the Plaintiff

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(Cause title accepted vide order dated 23/1/2012 made in M.P.(MD) No.1 of 2012 in S.A.SR No.43398/08 by ASJ)

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Raju @ Kurumba Thevar

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... Respondent/Defendant

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PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree passed by the I Additional Subordinate Judge, Madurai in A.S.No.60 of 1998 dated 18/2/2004 decreeing the suit in O.S.No.326 of 1995 on the file of the District Munsif-cum-Judicial Magistrate, Usilampatti dated 17/12/1997.

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For Appellants

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... Mr.M.S.Balasubramania Iyer

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For Respondent ... Mr.R.R.Kannan

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J U D G M E N T

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The unsuccessful plaintiff (legal heirs of the plaintiff are the appellants herein) is the appellant herein in a suit for declaration and recovery of possession and for the mesne profits.

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The case of the plaintiff is that he is the owner of the suit property ancestrally and he has filed a sketch along with the plaint to identify his property. The defendant who is owning the https://hcservices.ecourts.gov.in/hcservices/ properties south and west of the suit property had encroached upon the suit property in September, 1990. Therefore, the plaintiff applied to the Tahsildar, Usilampatti for surveying field and for

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determination of boundary lines. Accordingly, the lands were surveyed and boundary stones were fixed. Even thereafter, the defendant failed to surrender possession and encroached upon, despite repeated requests. Thereafter, the defendant also filed an application to the Surveyor to re-survey and demarcate the property. The Tahsildar, conducted a detailed enquiry and rejected the claim of the defendant and directed the parties to resolve their disputes before the Civil Court. An appeal filed by the defendant before the Revenue Divisional Officer was also dismissed and the revision before the District Revenue Officer was also dismissed. In spite of repeated demands, the defendant refused to hand over the possession of the property. Hence the suit came to be filed.

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The defendant had produced Ex.B.1 dated 21/9/1921 which is the sale deed in favour of his grandfather. Thereafter, the defendant has been dealing with the property and mortgaged the property with Nilavala vangi, which is marked as Ex.B.2. In fact, the demand notice from the Bank to the defendant is marked as Ex.B.3 and as per Ex.B.7, there was another mortgage by the defendant. The defendant, denies the patta standing in the name of the plaintiff and claimed that the suit property is an ancestral property and he has got a valid right and title to the same.

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The trial Court only based on the patta Ex.A.5 had decreed the suit. The trial Court had decreed it in favour of the plaintiff holding that the defendant had not established his title. Feeling aggrieved, the defendant filed A.S.No.60 of 1998, challenging the decree of the trial Court that the plaintiff has to follow or stand on his own merits and cannot take advantage of the lacuna in the case of the defendant. The lower Appellate Court had dismissed the suit. Against which the Second Appeal is filed.

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The learned Appellate Judge held that the plaintiff who has come with the case of declaration and title has not produced any document of title except the patta under Ex.A.5 whereas the defendant has produced Exs.B.1 to B.8 of which Exs.B.1 and B.7 are the title deeds which go to prove the right, title and possession of the defendant.

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According to the defendant, the suit property is divided into 2 pieces of 7 ½ cents each. Ex.B.1 dated 21/9/1921 filed by the defendant is relating to S.No.351/1 for an extent of 2 acres and 66 cents. The said document was mortgaged before the Bank as per the mortgage deed Ex.B.2 dated 22/6/1971 and the demand notice for the recovery of the mortgage amount is marked as Ex.B.3. The https://hcservices.ecourts.gov.in/hcservices/ further mortgage by the defendant under Ex.B.7 to one Nagappathevar is also produced by the defendant. The above said documents were believed by the lower Appellate Court and it was

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held that the defendant is the owner of the suit property who had been dealing with the same. As the defendant has established that he is the owner of the suit property, the question of encroachment as alleged by the plaintiff does not arise.

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The contention of the appellants/plaintiff that as per Ex.B.2, only 2 acres and 53 cents were mortgaged whereas under Ex.B.7, 2 acres and 66 cents were mortgaged. Therefore, the difference of 15 cents is the suit property which has been encroached upon by the defendant. The lower Appellate Court had correctly held that merely because the smaller extent of land is mortgaged, subsequently, will not take away their right of the defendant not under the sale deed Ex.B.1.

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The claim of the plaintiffs that they had been paying the kist for the suit property was believed by the trial Court whereas the non-production of the said kist receipts was taken note of by the lower Appellate Court and an adverse inference was drawn against the plaintiff.

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The plaintiff having come with the specific case that he is the owner of the property has to establish the same with the relevant documents and evidence. He cannot pick holes in the case of the defendant. On the contrary, in this case, the defendant has produced his documents of title and established his ownership for 2 acres and 66 cents out of which 15 cents of land, which is the suit property as claimed by the plaintiff is a part of it. Having failed to establish his case and as there is no question of law much less a substantial question of law in the appeal, the appeal fails.

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In the result, this Second Appeal is dismissed, confirming the the judgment and decree passed by the I Additional Subordinate Judge, Madurai in A.S.No.60 of 1998 dated 18/2/2004. No costs.

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Sd/-

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Assistant Registrar(T&P)

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/True Copy/

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Sub-Assistant Registrar

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I Additional Subordinate Judge, Madurai

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2.The District Munsif-cum-Judicial Magistrate, Usilampatti

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+One cc to Mr.M.S.Balasubramania Iyyer, Advocate, SR.No.22265 +One cc to Mr.R.R.Kannan, Advocate, SR.No.22409 mvs

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RL/5c – 9/5/2014

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https://hcservices.ecourts.gov.in/hcservices/

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Judgment in S.A.(MD) No.284 of 2014

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10/4/2014

Paramasamy Thevar(Died), v. Raju @ Kurumba Thevar

Case brief

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What did the court decide?

Paramasamy Thevar(Died), v. Raju @ Kurumba Thevar

Case brief

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