Allowed

Chakkarabani v. Gopal Gounder (Deceased)

Madras HC8 Jan 2020SA/1806/1998

Case brief

AI extract

What is this about?

In a second appeal regarding a land dispute and exchange deed, the Madras High Court allowed the appeal, holding that a survey sketch was admissible additional evidence. The Court set aside the first appellate court's decree, finding its reliance on the defendants' rough plan perverse, and restored the trial court's decree in favor of the plaintiffs.

What did the court decide?

Second appeal allowed; judgment and decree of A.S.No.23 of 1997 set aside; judgment and decree of O.S.No.414 of 1988 restored; appeal allowed with costs; CMP.No.4962 of 2018 allowed.

Chakkarabani Vs Gopal Gounder (Deceased) — Partition | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on : 20.12.2019

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Date of Verdict : 08.01.2020

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CORAM

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THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

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S.A.No.1806 of 1998 and CMP.No.4962 of 2018

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1.Chakkarabani

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2.Chinnammal

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...Appellants/Respondents/Plaintiffs

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Vs.

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1.Gopal Gounder(deceased)

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2.Mari Gounder(deceased)

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3.Sarada(died)

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4.Rangaswamy

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5.Manonmani

6.Mangai

7.Baskaran

8.Mani

9.Elumalai

10.Sundramoorthy

...Respondents/Appellants/Defendants

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(R3 - died: RR4 & 5 are recorded as LR's of the deceased R3 viz., Sarada vide order of court dated 21.10.2019 made in SA.No.1806 of 1998 as per memo dated 21.10.2019 are recorded )

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(RR6 to 10 are brought on record as LR's of the deceased R2 vide order of court dated 15.02.2018 made in CMP.Nos.5712 to 5714 of 2016 in SA.No.1806 of 1998 )

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(RR3 to 5 brought on record as LR's of the deceased R1 vide order of court dated 22.12.2014 made in CMP.No.509 of 2014 in SA.No.1806 of 1998)

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Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 22.07.1998, in A.S.No.23 of 1997 on the file of the Additional District Judge, Tiruvannamalai modifying the judgment and decree dated 30.12.1996 in O.S.No.414 of 1988 on the file of the II Additional District Munsiff Court, Tiruvannamalai.

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For Appellants : Mr.S.T.Bharath Goutham for Mr.T.R.Rajaraman

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

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For Respondents For R4 to R10 : Mr.V.Raghavachari : R1, R2 and R3 – died

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JUDGMENT

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The second appeal is directed as against the judgment and decree dated 22.07.1998, in A.S.No.23 of 1997 on the file of the Additional District Judge, Tiruvannamalai modifying the judgment and decree dated 30.12.1996 in O.S.No.414 of 1988 on the file of the II Additional District Munsiff Court, Tiruvannamalai.

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For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

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The case of the plaintiffs in brief is as follows:-

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3.1 The plaintiffs filed the suit for declaration and permanent injunction. The property originally belonged to the defendants. The plaintiffs and the defendants entered into exchange deed dated 02.05.1983. As per the terms of the exchange deed, the suit property was allotted to the plaintiffs and some other properties of the plaintiffs were given to the defendants. In the exchange deed, the suit property mentioned in 'A' schedule and the properties belonging to the plaintiffs mentioned in the 'B' schedule. The suit property originally comprised in Survey No.50/1E and the total extent was 54 cents. Out of the 54 cents, the plaintiffs were given under the exchange deed to an extent of 30 cents. In 5 cents, there is a common well belonging to the plaintiffs and the defendants. The remaining 19 cents are belonged to the defendants. Accordingly, the plaintiffs are to be in possession and enjoyment of the property and thereafter accordingly to the exchange deed, sub division was made and the property belonging to the plaintiffs comprised in Survey no.50/1E1, and the common well was sub divided as survey No.50/1E2. The property belonging to the defendants was sub divided as 50/1E3. Thereafter, the plaintiffs also dug up a well in the suit property. Under these circumstances, there is a misunderstanding between the plaintiffs and the defendants and the defendants have denied the title of the plaintiffs to the suit property. Hence, the suit for declaration and injunction.

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Resisting the same, the defendants filed written statement and submitted that the suit property belonged to the defendants and the plaintiffs have got the same by way of exchange deed dated 02.05.1983. The total extent of 54 cents comprised in 50/1E, in which common well situated within the area of one cent. The remaining property admeasuring 53 cents belongs to the defendants. In the said common well, the second plaintiff entitled to 1/3 share and the defendants are entitled to 2/3 share. Under the exchange deed, the plaintiffs were given 30 cents and the remaining 23 cents retained by the defendants including north western projecting portion of the suit property. The boundaries of the property https://hcservices.ecourts.gov.in/hcservices/ which was allotted to the plaintiffs mentioned in the exchange

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deed. The defendants also filed rough plan along with the written statement and accordingly the portion marked as ABCDEF for the total extent comprised in Survey No.50/1E, the property which was given to the defendants shown as BCDE. The property retained by the defendants marked as ABEF. Accordingly, the plaintiffs are enjoying the property admeasuring 30 cents, which is marked as BCDE and accordingly the ridge was also formed in the east western direction. Thereafter, oral partition took place between the defendants in the year 1984. The first defendant was allotted 2/3 share in the common well and also the northern 23 cents in survey No.50/1E and other properties were allotted to the share of the second defendant.

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4.1 Since the date of partition, respective shares have been enjoyed by the defendants respectively. The defendants are not aware of the alleged sub division of the subject property as well as the grant of separate patta for the suit schedule property in favour of the plaintiffs. In fact, no notice was served upon the defendants before making sub division in survey No.50/1E. Under the guise of alleged sub division, now the plaintiffs have made false claim over the portion which is shown as EFGH in the plaint. Therefore, the plaintiffs have no manner of right or title, interest over the said portion of the suit schedule property. Hence, the plaintiffs are not entitled to seek any relief as prayed for and sought for dismissal of the suit.

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In support of the plaintiff's case, P.W.1 was examined and six documents were marked as Ex.A.1 to Ex.A.6. On the side of the defendants, D.W.1 was examined and Ex.B.1 to Ex.B.7 were marked. On considering the oral and documentary evidences adduced by the respective parties and the submission made by the learned counsel, the trial Court decreed the suit in favour of the plaintiffs. Aggrieved over the judgment and decree of the trial Court, the defendants preferred appeal suit in AS.No.23 of 1997 before the Additional District Judge, Thiruvannamalai. The first appellate Court on appreciating the materials placed on records, allowed the appeal and dismissed the suit filed by the plaintiffs. Aggrieved by the same, the plaintiffs have filed this second appeal.

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At the time of admission of the second appeal, the following substantial questions of law were framed:-

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a) When the defendants have admitted the title of the plaintiffs to 30 cents, is the learned Subordinate Judge correct in dismissing the suit with respect to the EFGH portion?

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b) When the extent of the suit property is clearly mentioned and no dispute about it, is the learned Subordinate Judge correct in holding boundaries prevail over extent?

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https://hcservices.ecourts.gov.in/hcservices/ 7. The learned counsel appearing for the plaintiffs and

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the defendants are present and they reiterated the averments set out in the plaint as well as the written statement.

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Heard, the learned counsel appearing for the plaintiffs and the learned counsel appearing for the defendants.

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This Court considered the rival submissions made by the learned counsel on either side.

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The case of the plaintiffs is that under the exchange deed which was marked as Ex.A1, equivalent to Ex.B.1, the property comprised in Survey No.50/1E admeasuring 54 cents of the property exchanged by the plaintiffs as well as the defendants. Accordingly, the plaintiffs were allotted to an extent of 30 cents and to an extent of 19 cents was allotted to the defendants. The remaining 5 cents with a common well is in common usage by the plaintiffs as well as the defendants. Thereafter accordingly, sub division was effected and property which was allotted to the plaintiff was sub divided as 50/1E1, the common property was sub divided as 50/1E3. Whereas the defendants were unaware of the sub division as claimed by the plaintiffs and no sub division were made as claimed by the plaintiffs. As per the exchange deed, 30 cents of the property was allotted to the plaintiffs and one cent in which common well was situated and remaining property admeasuring 23 cents retained by the defendants as their share.

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The defendants are brothers and after demise of their father, they had been enjoying the properties left by their father including 2/3 share in the common well. In between the defendants, there was a oral partition in the year 1984, in which the first defendant was allotted 2/3 share in the common well and also the northern 23 cents in Survey No.50/1E and some other properties were allotted to the second defendant. When the plaintiffs were digging up the well in the property which was allotted to them comprised in RS.No.50/1E1, the defendants stopped the work and also were trying to interfere with the possession and enjoyment of the plaintiffs in respect of the suit property. Exchange deed was marked as Ex.A1, and accordingly sub division was made and patta was also issued and it was marked as Ex.A.2. In respect of the common well also issued patta jointly in favor of the plaintiffs. Though the defendants claimed that in the total extent of 54 cents of property comprised in Survey No.50/1E, the remaining property namely 24 cents in which the common well admeasuring one cent and remaining land retained by the defendants admeasuring 23 cents, they did not mark any of the documents to the extent of 23 cents, such as patta, chitta or adangal.

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12 On perusal of Ex.A.2 and Ex.A.3, the entries made in https://hcservices.ecourts.gov.in/hcservices/ the patta issued in favour of the plaintiffs prima facie show

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the evidence of title in favour of the plaintiffs. In respect of common well, though the defendants claimed 2/3 share they did not produce any document to show that they have 2/3 share in the common well. Admittedly, the entire property admeasuring 54 cents as per the exchange deed, the plaintiffs were allotted 30 cents. Now the only question is the common well situated in the land admeasuring one cent or 5 cents. Accordingly in the joint patta, the total extent mentioned as 5 cents and sub divided as 50/1E2.

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13 Pending the second appeal, the plaintiffs filed application in CMP.No.4962 of 2018 to receive additional evidence and to be marked as Ex.A.7 under order 41 Rule 27 of CPC. The document which is intended to be marked by the plaintiffs is nothing but survey sketch showing sub division of the property comprised in Survey No.50/1E.

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14 The learned counsel for the plaintiffs submitted that after sub division, accordingly survey sketch was prepared by the Revenue Department and it was obtained after the suit from the Revenue Department. Since it is a public document there is absolutely no prejudice would be caused to the defendants to mark the FMB sketch as plaintiffs document.

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15 Per contra, the learned counsel for the defendants submitted though it is a public document, at this stage it cannot be received as additional document, since no sub division was made so far. The document which is intended to be marked as Ex.A.7 by the plaintiffs, has to be gone into and prayed for dismissal of the said application.

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16 In this regard, the learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court of India in the case of Union of India Vs. K.V.Lakshman and Others reported in (2016) 13 SCC 124, wherein it is held as follows:

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"33) This takes us to the next question in relation to the application filed under Order 41 Rule 27 of the Code. In our considered view, the High Court committed another error when it rejected the application filed by the appellant under Order 41 Rule 27 of the Code. This application, in our opinion, should have been allowed for more than one reason.

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First, there was no one to oppose the application. In other words, the respondents were neither served with the notice of appeal and nor served with the application and hence they did not oppose the application. Second, the appellant averred in the application as to why they could not file the additional evidence earlier in civil suit and why there was delay on their part in filing such evidence at the appellate stage. https://hcservices.ecourts.gov.in/hcservices/ Third, the averments in the application were

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supported with an affidavit, which remained unrebutted. Fourth, the application also contained necessary averment as to why the additional evidence was necessary to decide the real controversy involved in appeal. Fifth, the additional evidence being in the nature of public documents and pertained to suit land, the same should have been taken on record and lastly, the appellant being the Union of India was entitled to legitimately claim more indulgence in such procedural matters due to their peculiar set up and way of working."

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17 It is held by the Hon'ble Supreme Court of India that the application under Order 41 Rule 27 of CPC has to be seen whether any objections, reasons for the delay in filing the said evidence at the appeal stage and whether the evidence is necessary or not to decide the real controversy involved in the appeal.

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18 In the case on hand, admittedly it is a public document and it is very much necessary to decide the real controversy involved in this appeal, since according to the defendants, there is no sub division after the exchange deed executed between the plaintiffs and the defendants.

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19 In this regard, this Court in the case of Chinnathayammal and 4 others Vs. K.Padmavathy, rep. by her Power of Attorney Agent S.Chandrasekaran and another reported in 2011 SCC Online Mad 437, has held as follows:

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"16.Point No.1:

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(i) The plaintiff filed the suit for declaration of title and recovery of possession stating that the properties were originally owned by the family of Sengoda Gounder. The genealogy of the parties is shown below:

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(ii) The properties are allotted to the share of Vellayammal and her five sons under the registered partition deed dated 20.02.1956, which was marked as Ex.A1. Periya Thambi @ Vaiyapuri executed the Release deed dated 01.07.1970 under Ex.A2, in favour of Vellayammal, the second wife of Vaiyapuri and her sons Lakshmanan and Adappan @ Perapandaram. Admittedly, the first defendant is the wife of Adappan @ Perapandaram and the defendants 2 to 4 are their daughters and the fifth defendant is their son. Vellayammal and her sons Lakshmanan and Adappan @ Pera Pandaram executed the sale deed in favour of one Manickavasagam under Ex.A3 and the original was marked as Ex.A35. In turn, he sold the same in favour of the plaintiff under Ex.A4 and the original https://hcservices.ecourts.gov.in/hcservices/ was marked as Ex.A20. Another portion was sold by

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Vellayammal and her sons Lakshmanan and Adappan @ Pera Pandaram to Nagarathinam Ammal on 05.03.1974, which was marked as Ex.A5. In turn, she sold the same to one Mohan Kumar under Ex.A6 and the said Mohan Kumar sold the same to the plaintiff under Ex.A7 dated 31.08.1981. On the basis of the sale deeds under Exs.A4 and A7, the plaintiff filed the suit for declaration of title and recovery of possession. The defendants raised the plea that they are in possession and enjoyment of the suit properties and the plaintiff was never in possession and enjoyment of the same.

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(iii)The trial Court after considering the evidence of P.W.1 and P.W.2 and D.W.1 and considering the documentary evidence, decreed the suit without costs, against which, the present appeal suits have been preferred by both the plaintiff and the defendants 1 to 5.

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(iv)The learned counsel for the plaintiff submitted that the plaintiff has come forward with M.P.No.1 of 2011 for reception of additional evidence stating that as soon as the plaintiff's predecessors in title purchased the properties and mutation of revenue records were made, to prove the same, Exs.A8 and A12-the Re-settlement Register were marked, but it stands in the name of the plaintiff. At the time of filing, the plaintiff was under impression that she filed the Re-settlement Register stands in the name of her predecessors in title, which was mixed with lower Court counsel's papers. So she was unable to produce the same. Now this document is necessary to pronounce judgment. Since the defendants 1 to 5 have raised the defence that even though the sale deeds have been executed in the year 1974, no mutation of revenue records and patta stands in the name of the predecessors in title. Hence she prayed for reception of that document to be received as an additional evidence.

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(v) As per Order 41 Rule 27 C.P.C., the person, who wants to adduce additional evidence must prove three ingredients:

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(1) The document is produced before the trial Court, but the trial Court refused to receive and rejected the same.

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But here, no such pleading and no such argument was advanced by the learned counsel for the plaintiff.

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

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(2) In due diligence, he was unable to obtain the document.

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(3)Whether this document is necessary for pronouncing judgment or any other substantial cause?

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At this juncture, the learned counsel for the plaintiff submitted that Exs.A8 and A12 are the certified copies of the Re-settlement Register, to show that the properties stand in the name of the plaintiff. But he prayed for the reception of additional evidence (i.e.) certified copy of the Resettlement Register dated 04.11.1974 stands in the name of the predecessors in title of the plaintiff, which was mingled with the case bundles of the lower Court counsel. He further submitted that this document is necessary to prove that the plaintiff's predecessors in title purchased the properties and taken steps for mutation of revenue records and also taken steps to transfer the name of the patta. So this document is necessary to pronounce judgment.

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(vi)At this juncture, it is appropriate to consider the decisions relied upon by the learned counsel for the plaintiff, reported in (a) AIR 2004 Supreme Court 3685 (Jayaramdas and Sons v. Mirza Rafatullah Balg and others) in paragraphs-8 and 9, it read as follows:

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"8.It is true that additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof is made out by reference to clause (a) or (aa) of sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of clause (b). A perusal of the documents, brought to our notice by the learned counsel for the appellants and their comparison with the documents already available on record, clearly goes to show that the two are at variance and the effect of such variance determined either way would have a material bearing on the crucial issue arising for decision between the parties.

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9.As already pointed out both the sets of documents are certified copies of public documents. The appellants would not ordinarily suspect or doubt the documents where the certified copies of public documents were secured from the public officer having the custody of such public documents. It is only when it came to their knowledge that the https://hcservices.ecourts.gov.in/hcservices/ certified copies were at variance with the originals

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or were not complete copies that they thought of securing another set of certified copies and then seeking leave of the Court for producing the certified copies obtained by them as an additional evidence in Appellate Court. The case of the appellants for production of additional evidence falls within clause (aa) of sub-rule (1), abovesaid. It would have been better if such ground was set out specifically in the application so that the opposite party could have had an opportunity of meeting the plea and the First Appellate Court could also have had the provisions of clause (aa) of sub rule (1) in its mind for dealing with the appellants' application. However, still we feel that the ends of justice demand the additional evidence being allowed to be produced dehors the deficiency in the application filed by the appellants."

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(b) (2006) 9 SCC 772 (State of Gujarat and another v. Mahendrakumar Parshottambhai Desai (Dead) by Lrs. ), in paragraphs-10, 11 and 12, it read as follows:

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"10. .. .. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for substantial cause since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in Municipal Corpn. for Greater Bombay v. Lala Pancham wherein this Court held that though the appellate court has the power to allow a document to be produced and a witness to be examined under Order 41 Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for the purposes of pronouncement of judgment in a particular way. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The High Court, therefore, dismissed the applications for https://hcservices.ecourts.gov.in/hcservices/ adducing additional evidence.

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We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the government records and they could have been produced in the suit.

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.. .. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the State or that such evidence was not within its knowledge. In fact no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellant State. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the applications filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case.

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(c) (2007) 14 Supreme Court Cases 257 (K.R.Mohan Reddy v. Net Work INC. represented through MD), in paragraphs-17 and 18, it read as follows:

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"17. It is now a trite law that the conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of Order 41 is different from that of clause (b). In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. On the other hand if clause (b) to sub-rule (1) of Rule 27 of Order 41 CPC is to be taken recourse to, the appellate court is bound to consider the entire evidence on record and come to an independent finding for arriving at a just decision; adduction of additional evidence as has been prayed by the appellant was necessary. The fact that the High Court failed to do so, in our opinion, amounts to misdirection in law. Furthermore, if the High Court is correct in its view that the respondent-plaintiff had proceeded on the basis that the suit is entirely based on a cheque, wherefor, it was not necessary for it to file the books of accounts before the trial court, finding contrary thereto could not have been arrived at that the same was in fact required to be proved so as to enable the appellate court to arrive at a just conclusion.

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

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The Supreme Court in State of Gujarat v. Mahendrakumar Parshottambhai Desai relying upon Municipal Corpn. of Greater Bombay v. Lala Pancham held as under: (SCC p.775, para 10) 10. though the appellate court has the power to allow a document to be produced and a witness to be examined under Order 41 Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for the purposes of pronouncement of judgment in a particular way. "

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Considering the above citations, since the document is necessary for pronouncing judgment and the document is a public document, which is a Resettlement Register to prove that the patta has been changed from Vaiyapuri, son of Sengoda Gounder to the predecessors in title of the plaintiff, this document is necessary for pronouncing judgment. Hence, M.P.No.1 of 2011 is liable to be allowed and the additional document is marked as Ex.A36. Point No.1 is answered accordingly.

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20 Per contra, the learned counsel for the defendants submitted that there is no specific reasons for delay in producing the document at the stage of second appeal and further it would not help this Court in any manner to decide this appeal. This document is nothing but intended to only fill up the lacuna. No ground whatsoever was made out for adducing the additional evidence and the sole purpose for which the appellant insisted upon adducing evidence was to pursuade this Court to urge the point of view on behalf of the appellants. The document which is intended to be marked as additional evidence, is a public document came into existence from the time when there were no disputes between the plaintiffs and the defendants. It is only a survey sketch after the sub division from the survey No.50/1E in accordance with the exchange deed, Ex.A.1. It would have been attached by him to decide this appeal.

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21 Since the crux of the issue between the plaintiffs and the defendants is that the portion which was allotted to the plaintiffs admeasuring 30 cents is situated as L shape or rectangle shape. The survey sketch bearing survey No.50, Village No.110, Karanampundi, North Arcot shows the sub division in respect of property comprised in Survey No.50/1E. The additional evidence is necessary to decide the real controversy involved in this appeal and it is being a public https://hcservices.ecourts.gov.in/hcservices/ document pertaining to the suit property and as such it can be

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taken on record. Therefore, this Court is of the considered opinion that the document is very relevant to decide this appeal and as such this document can be viewed as additional evidence and marked as A7.

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22 The first appellate court reversed the findings of the trial court on the ground that the boundaries mentioned in the Ex.A.1 on the either side of the portion which was allotted to the plaintiffs, the lands of the second plaintiff are situated. On the north of the said portion, the remaining land of the defendants is situated. On the east side of the said portion, it is mentioned that the land of one, Mr.Krishna Konar. From those boundaries, the appellate court found that the plaintiffs were allotted portion marked as EFGH in the Ex.B2. Ex.B2 is nothing but rough plan annexed along with the written statement. Whereas Ex.A7 which is marked on behalf of the plaintiffs clearly shows that after the exchange deed which was marked as Ex.A1., there was sub division in Survey No.50/1E as 50/1E1, 50/1E2 and 50/1E3. Insofar as the plaintiffs are concerned, their share was sub divided as Survey No.50/1E1 admeasuring 30 cents. The survey sketch clearly shows that the portion shown as L shape and not in rectangle shape as found by the first appellate court. The first appellate court completely relied upon the Ex.B.2, which is nothing but rough sketch produced by the defendants. Except this document, the defendants did not produce any of the documents to show that common well situated in the land admeasuring one cent as well as portion allotted to the plaintiffs is in a rectangle shape. In pursuant to the exchange deed, the sub division was made, and accordingly the common well is situated in the extent of 5 cents and the remaining property admeasuring 19 cents was allotted to the defendants. Further the suit is filed for plaintiffs share alone and there is no dispute about the extent of the property as 30 cents. The findings of the first appellate court is perverse and without any material. Only on the strength of Ex.B.2, the suit filed by the plaintiffs was dismissed as such the findings of the first appellate court cannot be sustained as against the plaintiffs and the plaintiffs are entitled for declaration and injunction in respect of the suit schedule property.

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23 In the light of the above discussions, all the substantial questions of law, formulated by this Court in the Second Appeal, are accordingly answered against the defendants and in favour of the plaintiffs. Consequently, the judgment and decree dated 22.07.1998 passed in AS.No.23 of 1997 on the file of the Additional District Judge, Tiruvannamalai are set aside and the judgment and decree dated 30.12.1996 passed in OS.No.414 of 1988 on the file of the II Additional District Munsif, Tiruvannamalai are restored.

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

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