Dismissed

E.Appal Raju v. Bakthavatchala Chetty(Died)

Madras HC27 Jul 2021SA/1511/2008

Case brief

AI extract

What is this about?

High Court of Madras dismissed this second appeal concerning a suit for declaration of title and injunction over a suit well. The Court held that the Substantial Questions of Law were answered against the appellants, confirming the lower appellate court's ruling based on documentary and oral evidence.

What did the court decide?

The Second Appeal was dismissed and the judgment and decree in favour of the lower appellate court was confirmed.

E.Appal Raju Vs Bakthavatchala Chetty(Died) — Partition | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 27.07.2021

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CORAM

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THE HONOURABLE MS.JUSTICE P.T. ASHA

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S.A.NO.1511 OF 2008 AND M.P.NO.1 OF 2014

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E.Appal Raju ...Appellant / Respondent / 2^nd plaintiff

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Vs.

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1.Bakthavatchala Chetty (died)

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2.V.Govindarajulu Chetty

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...Respondents / Appellants / Defendants

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3.Sudhamani 4.Kothandapani 5.Devakar 6.Savithri

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7.Rajagopal

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8.Shanmugam

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9.Hemanthkumar ...Respondents

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[Respondents 3 to 9 brought on record the legal representatives of the deceased 1^st respondent vide order of this Court dated 29.11.2019 made in C.M.P.Nos.24060, 24063 and 24068 of 2019 in S.A.No.1511 of 2008 by AQJ)

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PRAYER : Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and decree dated 10.12.2007 passed in A.S.No.58 of 2006 on the file of the learned Subordinate Judge, Thiruvallur, reversing the Judgment and Decree dated 15.03.2006 passed in O.S.No.533 of 2001 on the file of the learned District Munsif, Pallipattu.

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For Appellant : Mr.A. Prabhakaran For Respondents : Mr.A. Palaniappan for R2 to R9 R1 - died

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JUDGMENT

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The 2^nd plaintiff is the appellant before this Court. The Second Appeal arises against the dismissal of A.S.No.58 of 2006

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by the learned Subordinate Judge, Thiruvallur, reversing the Judgment and Decree in O.S.No.533 of 2001 of the learned District Munsif, Pallipattu.

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2.The parties are referred to in the same litigative status as before the trial Court.

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3.The facts in brief which has culminated for filing of the Second Appeal are as follows:

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The plaintiffs have filed a suit for declaration of their right, title and interest to the suit property and for a consequential injunction restraining the defendants, their men, agents and servants from in any manner interfering with the plaintiffs peaceful possession and enjoyment of the schedule mentioned property.

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4.The property in dispute is described as follows: SCHEDULE OF PROPERTY

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"Thiruvallur District, Pallipattu Sub Reg. Dt., Pallipattu Taluk, in Nochili Village account:

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S.No.138/3 in this a dilapidated well, well mound, Kabilabari and other standing trees thereon with S.C.No.71 measuring about 0.06 cent bounded to the East West, South and North by the plaintiffs land."

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5.The 1^st plaintiff has purchased the ½ share in the suit well along with other landed properties for a valuable consideration of Rs.800/- from one Krishnama Raju and another under a registered Sale Deed dated 11.12.1957. Likewise, the 2nd plaintiff had purchased the lands in Survey No.138/3 measuring an extent of 1 acre out of 1.70 acres together with 1/2 share in the suit well from the owners Venkat Raju and others under a registered Sale Deed dated 01.09.1980 for a valuable consideration of Rs.21,800/-.

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6.The plaintiffs would submit that they are the absolute owners of the suit well and that no one in any manner has got a right to the same. The suit property was in dilapidated conditions and it was in disuse and the plaintiff has raised several trees in the property and around the well. In the month of April 1998, the plaintiffs decided to remove the trees and clear the shrubs around the suit well at which point of time the defendants obstructed the plaintiffs act. This constrained the plaintiffs to issue a Legal Notice dated 16.04.1998 informing the defendants that they have no right over the suit well. The defendants had received the said notice and sent a reply containing false allegations. Thereafter, the defendants attempted to cut the standing trees in the suit property on 20.08.1999, however, the plaintiff has resisted the said action.

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Pending the suit, the 1^st plaintiff died on 29.08.2001 leaving behind her surviving the 2^nd plaintiff and the 3^rd plaintiff as her legal heirs.

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7.The 1^st defendant had filed a Written Statement which was

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adopted by the 2^nd defendant in which the defendants would contend that they are entitled to a 1/4^th share in the suit well. It is their case that their junior paternal uncle Krishnama Chetty had purchased the 1/4^th share in the suit property under a registered Sale Deed dated 20.12.1957 from the vendor namely, Gengadharam Achari. The said Krishnama Chetty was in possession and enjoyment of the property till his death. Likewise, the defendant's elder brother Pandurangiah Chetty had purchased a 1/8^th share in the suit well from one Errabbaraju @ Narasharaju under a registered Sale Deed dated 25.03.1973. However, by an oversight Survey Number has been given as 138/4 instead of 138/3.

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8.The defendants would submit that they are in joint possession and enjoyment of the suit well. UDR Patta bearing No.665 has been issued in the name of the plaintiffs, the 2^nd defendant and Krishnamaraju. Therefore, the plaintiffs are not entitled to a declaration that they are the absolute owners of the suit well and the consequential injunction.

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9.The parties had gone to trial on the following issues

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framed by the learned District Munsif, Pallipattu:

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“(1)Whether the plaintiffs or the defendants

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have got right and title to the suit property?

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(2)Whether the plaintiffs are entitled for the

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Decree as prayed?

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(3)To what other reliefs the parties entitle

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for?"

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10.The 2^nd plaintiff had examined himself as P.W.1 and one Narayana Raju was examined as PW2 and Ex.A.1 to Ex.A.41 were marked. The 1^st defendant examined himself as D.W.1 and Ex.B.1 to Ex.B.11 were marked. The 2^nd defendant was examined as DW3 and Ex.C.1 to Ex.C.11 were marked.

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11.The learned District Munsif, Pallipattu took note of the evidence of the defendants that there were two wells situate in the suit property one on the Western side and another on the Eastern side which though initially denied by the plaintiffs was subsequently admitted to by P.W.1, the 2^nd plaintiff during the cross examination. The learned Judge chose to disbelieve Ex.B.1 and Ex.B.2 on the ground that Ex.B.1 refers to a paimash number for which the corresponding survey number has not provided and further they have also not provided the correlation Certificate. Ex.B.2 was disbelieved as it did not relate to the suit property

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i.e., Survey No.138/4 and the Ex.B.2 is of the year 1973 and no steps have been taken to correct the same.

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12.The learned Judge also chosen to ignore the joint patta granted under Ex.B.3 and Ex.B.4 and consequently, decreed the suit. Aggrieved by the same, the defendants had filed A.S.No.58 of 2006 on the file of the learned Subordinate Judge, Thiruvallur. The learned Judge relying on the admission of the 2^nd plaintiff as P.W.1 regarding the joint right of the defendants to the suit property and also considering Ex.B.1 and Ex.B.2 allowed the appeal and dismissed the suit. Challenging the same, the 2nd plaintiff is before this Court.

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13.The Second Appeal was admitted on the following Substantial Questions of Law by orders of this Court dated 10.12.2008:

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“(1)Whether the findings rendered by the First Appellate Court that the oral evidence of the parties will prevail over the documentary evidence?

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(2)Whether the inference drawn by the First Appellate Court in ascertaining the right of the defendants by virtue of revenue documents is sustainable in Law?"

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14.Heard the learned counsels appearing on either side and perused the papers.

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15.The 2^nd plaintiff as P.W.1 has made the following statements in his Cross examination:

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"///jhth brhj;J rh;nt vz;/138-3 MFk;/ me;j rh;nt vz;zpy; bkhj;j tp!;jPuzk; 1/70 brz;l; MFk;/ jhth brhj;Jf;F bjw;fpy; cs;s vd;Dila epyj;jpw;F gf;fj;jpy; gpujpthjpfspd; epyk; cs;sJ/ rh;nt vz;/138-3y; mjhtJ (jhth brhj;J) fpHf;Fg; gf;fk; xU fpzWk; nkw;Fg; gf;fk; xU fpzWk; ,Uf;fpwJ vd;why; rhpjhd;/ rh;nt vz;/138-3y; nkw;F gf;fk; ,Ue;j fpzW jw;nghJ ,y;iy/ me;j , lj;jpy; MH;Jisf;fpzW mikf;fg;gl;L mjpy; jhd; kpd;dpizg;g[ vz; 23 Mfpait ,Uf;fpwJ/ kpd;dpizg;g[ vz;/71I jd; bgaUf;F ,d;Dk; khw;wk; bra;atpy;iy/ me;j kpd;dpizg;g[ epue;jukhf Jz;of;fg;gl;L tpl;lJ/ me;j MH;Jisf; fpzw;wpy; jhd; kpd;dpizg;g[ vz;/23 vd; jhahh; bgahpy; bgwg;gl;L ePh;g;ghrdk; bra;ag;gLfpwJ vd;why; rhpjhd;/ rh;nt vz;138-3y; fPH;g;g[wk; cs;s fpzW ghjp J}h;e;J tpl;lepiyapy; jz;zPh; ,y;yhky; ,Uf;fpwJ/ jhth brhj;jpy; nkw;go J}h;e;J ngha [s;s fpzw;wpy; K:ykhfj;jhd; gpujpthjpfs; ,e;j epy';fSf;F Muk;gj;jpy; ePh; gha;r;rg;gl;L te;jJ/ jhth brhj;jpy; nkw;go g[wkhf cs;s fpzW vdJ ghl;ldhUf;F ghj;jpag;gl;L gpd;dh; vdJ je;ijapd;

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ghfj;jpw;F bfhLf;fg;gl;ljhFk;/ nkw;go nkw;Fg[wKs;s fpzW vdf;F ghj;jpag;gl;lJ/ mjw;fhd Mtz';fs; jhf;fy; bra;fpnwhk;/ uhkhuh$% , we;j gpd;dh; mtUf;Fz;lhd 1-8 ghfj;ij (jhthtpy; brhy;yg;gl;Ls;s fpzW) gpujpthjpfspd; K:j;j rnfhjuuhd ghz;Lu';fuh$%f;F fpuak; bfhLj;jpUf;fpwhh; vd;why; me;j tptuk; bjhpa[k;/ nkw;go fpuag;gj;jpuj;jpy; rh;nt vz; 138-3 vd;gjw;F gjpyhf rh;nt vz;/138-4 vd;W jtWjyhf fpua Mtzj;jpy; Fwpg;gpl;l tptuk; bjhpa[k;/ jhth brhj;Jf;F Muk;gj;jpy; gl;lh vz; 665 mJ gpd;dpl;L 300 vd khw;wg;gl;Ls;sJ/ mjw;fhf 665 gl;lh vd;W 1984nyna 3 ngh; nghpy; 1) ,w;ej fd;dpak;khs; 2)mg;gy;uh$ (2k; thjp) 3)nfhtpe;juh$; brl;oahh; (2k; gpujpthjp) fpUc;&zuh$% MfpnahUf;F rh;nt vz; 138-3y; 0/69/0 bcwf;nlh; 1 Vf; 70 brz;l; bfhLf;fg;gl;Ls;sJ vd;gij gp/rh/M/3 Kd;itj;J mwpe;J bfhs;s KofpwJ/ mjw;F gpd;dpl;L gp/rh/M/4 06/09/2005y; gl;lh vz;/300 vd khw;wk; bra;ag;gl;l gpd;dh; gs;spg;gl;L jiyikaplj;J Jiz tl;lhl;rpauhy; 3 ngh; bgahpy; jhd; bfhLf;fg;gl;Ls;sJ/ fd;dpak;khs; (1Mk; gpujpthjp) mg;gy;uh$% (2k; thjp) nfhtpe;juh$% brl;o (2k; gpujpthjp) Mfpnahhpd; bgahpy; gl;lh bfhLf;fg;gl;Ls;sJ/ ”

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16.In the light of such a categoric statement by the plaintiffs, it is clear that the suit well belongs to the plaintiffs as well as the defendants. PW1 has further admitted that paimash No.2121 correlates with S.No.1413. In his cross examination, he would state as follows :

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“///jhth brhj;jpy; fpHf;Fg;g[wKs;s fpzw;wpypUe;J jhd; gpujpthjpfs; epyj;jpw;F bry;fpw giHa fhy;tha; jw;nghJk; ,Uf;fpwJ vd;why; rhpjhd; rh;nt vz;/138-3f;F ,izahd igkhc&; vz;/2121 MFk;/ "

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Therefore, in the light of the above categoric evidence, the Substantial Questions of Law are answered against the appellant/plaintiffs and the Second Appeal is dismissed. The Judgment and Decree in A.S.No.58 of 2006 on the file of the learned Subordinate Judge, Thiruvallur is confirmed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.

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// True Copy //

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mps

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1.The Subordinate Judge, Thiruvallur.

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2.The District Munsif, Pallipattu.

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3.The Section Officer, V.R.Section, High Court, Madras.

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+1cc to Mr.A.Prabhakaran, Advocate SR.No.35791

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+1cc to Mr.A.Palaniappan, Advocate SR.No.36090

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S.A.No.1511 of 2008 and M.P.No.1 of 2014

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RSV(CO) RVM(01/12/2021)

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E.Appal Raju v. Bakthavatchala Chetty(Died)

Case brief

What is this about?

What did the court decide?

E.Appal Raju v. Bakthavatchala Chetty(Died)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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