Second appeal against judgment confirming title declaration in suit regarding property boundaries. High Court found no substantial question of law as lower courts rightly interpreted the Will and awarded title by considering Commissioner's report.
Second appeal dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Reserved on: 09.01.2017 Delivered on:12.01.2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.01.2017
CORAM:
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
S.A.(MD)No.1218 of 2011
1.R.Suresh Kumar
2.R.Muthukumar
.. Appellants/Appellants/Defendants
Vs.
Muthukannan .. Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree passed in A.S.No.4 of 2009, on the file of the Principal District Court, Thoothukudi, dated 28.02.2011 confirming the judgment and decree in O.S.NO.18 of 2007, on the file of the Subordinate Court, Kovilpatti, dated 16.12.2008.
For Appellants : Mr.R.Manimaran
for Mr.S.Meenakshi Sundaram For Respondent : Mr.K.Hemakarthikeyan
JUDGMENT
The above Second Appeal arises against the judgment and decree passed in A.S.No.4 of 2009, on the file of the Principal District Court, Thoothukudi, confirming the judgment and decree passed in O.S.No.18 of 2007, on the file of the Subordinate Court, Kovilpatti.
(i) According to the plaintiff, originally “A” and “B”
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schedule properties belonged to one Muthu Nadar, who purchased it by a registered sale deed dated 06.02.1954. The said Muthu Nadar executed a registered Will dated 24.05.1988 bequeathing “A” schedule property to the plaintiff and “B” schedule property to the defendants. The plaintiff and the defendants are the grandsons of the said Muthu Nadar born to his two sons. In the said Will, “A” schedule property comprises of 5 shops and a vacant land measuring an extent of 2487 sqft and “B” schedule property compromises of 3 shops and a vacant land measuring 10465 sqft.
(ii) According to the plaintiff, the document writer who prepared the Will committed an error in omitting to mention the eastern portion after mentioning the 5 shops portion. After the demise of Muthu Nadar, the plaintiff and the defendants are enjoying their respective shares of property which includes 5 shops and 3 shops respectively. The dispute between the plaintiff and the defendants is with regard to “C” schedule property which is a vacant site, wherein at present there is a small carriage shed.
(iii) According to the plaintiff, the defendants are attempting to grab the “C” schedule property which is nothing but a portion of the plaintiff's “A” schedule property. The “C” schedule property is measuring 2487 sqft excluding the plaintiff's 5 shops covering the “A” schedule. Collusively the first defendant filed a suit against the plaintiff in O.S.No.6 of 2005 for partition of “B” schedule property and in the said suit, they deliberately included the “C” schedule property as if it was available for partition. The suit is said to have been compromised. The plaintiff is not a party to that suit. Therefore, the compromise decree is not binding on him. Muthu Nadar had died on 03.10.1990. On the guise of the decree, the defendants are attempting to encroach the “C” schedule property by making false claim. In these circumstances the plaintiff filed the suit.
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“1.Whether the findings of the Courts below perverse in interpreting Ex.A.2 by coming to the conclusion that certain words are missing?
2.Whether the Courts below are correct in arriving to the conclusion regarding the market value of property to the parties when there are no pleadings and issues and in the absence of evidence from competent authority?
3.Whether the Courts below had arrived at a perverse finding when Commissioner's report and plan are not looked into in a proper perspective in the light of oral evidence of respective properties?”
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Advocate Commissioner was appointed before the trial Court, who also filed his report and plans which were marked as Exs.C.1 to C.3.
Sd/-
Assistant Registrar(CSII)
/True Copy/
Sub Assistant Registrar
ssl
To
COPY TO:
THE RECORD KEEPER,
V.R.SECTION, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI +1cc to Mr.S.MEENAKSHI SUNDARAM, Advocate Sr.No. 2423 +1cc to Mr.K.HEMAKARTHIKEYAN Advocate Sr.No. 2431
JAM/02.02.17/SV-MMS/4P-6C
S.A.(MD)No.1218 of 2011
12.01.2017
3 issues framed by the court
Whether findings of courts below were perverse in interpreting the Will missing certain words?
Whether courts erred in concluding market value of property without pleadings or evidence?
Whether courts erred by not properly considering the Advocate Commissioner's report in oral evidence?
1 provisions across 1 enactments
R. Suresh Kumar
R. Muthukumar
Muthukannan
M. Duraismamy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
