This second appeal challenged a dismissal of a suit for declaration and possession due to non-joinder of necessary heirs. The High Court held that the plaintiff failed to establish exclusive title over two property items without impleading siblings and other heirs, dismissing the appeal.
Second Appeal dismissed; 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.
S.A(MD)No.762 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)No.762 of 2011
M.Chinnappan ...Appellant/Appellant/Plaintiff
-Vs-
1.R.Meenal 2.K.Raman ... Respondents/Respondents/ defendants
(Memo dated 06.09.2022 presented before the Court on 07.09.2022is recorded vide Court order dated 07.09.2022 made in C.M.P(MD) No.7451 of 2022)
PRAYER : Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 01.02.2011 made in A.S.No.17 of 2009 on the file of Subordinate Judge, Sivagangai, confirming the judgment and decree dated 18.08.2008 made in O.S.No.183 of 2000, on the file of District Munsif, Sivagangai.
For Appellant : Mr.T.Antony Arulraj
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JUDGMENT
The plaintiff in the suit is the appellant. The appellant herein filed a suit
for declaration, mandatory injunction in respect of item-I of the suit property and declaration and recovery of possession in respect of the item-II of the suit property. The suit as well as the first appeal filed by the appellants were dismissed.
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According to the appellant, item -II of the suit property with an extent of 22 cents
was purchased by the appellant from one Sundarrajan Servai. The second item of the suit property lies in Survey No.132/37 and the same is shown as 'EFGH' in the plaint plan. After the death of Sundarrajan Servai, his wife Saraswathi sold it to the appellant on 12.04.2000 under Ex.A.4. It was further pleaded that the appellant, after purchase, surveyed the item-II of the suit property and found that an extent of 4 ½ feet in item-II was encroached by the respondents. Therefore, the appellants were constrained to file a suit for the aforesaid reliefs.
3.The respondents/defendants filed a written statement and denied the title of the appellant over the suit property. The respondents further averred that in item-I of the suit property, the father of the appellant put up a compound wall on the eastern extremity of his property by dividing the property of the appellant and respondents. The appellant, after demolishing the old house put up by his father, while putting up a new house, annexed the said compound wall along with his house and treated the compound wall as his eastern main wall and put up building over it. Thus, it is the case of the respondents that the appellant has no right over the property, which lie on the immediate east of his eastern main wall. The
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respondents set up an independent title over the suit item-I of the suit property. According to them, the first respondent/first defendant purchased item-I of the suit property from one Muthulakshmi under Ex.B2, dated 01.12.1986. The said Muthulakshmi in turn purchased item-I along with the property on the western side, under Ex.B1, dated 31.03.1960 from one Ramanujathammal. The respondents also claimed independent title over item-II of the suit property. According to them, item-II of the suit property was purchased by them under Ex.B.4, dated 01.12.1986 from Muthulakshmi and the said Muthulakshmi purchased the same from one Sonaimuthu Ambalam under Ex.B3, dated 11.07.1961. The respondents further pleaded that one Sundarrajan Servai under whom the appellant claimed title in respect of item-II died intestate by leaving behind his wife, a son and two daughters and hence, the appellant cannot purchase item-II of the suit property from Sarawathi alone and acquire title over the same. On these pleadings, the respondents sought for dismissal of the suit.
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respondents as D.W.2 and D.W.3 and 6 documents were marked as Ex.B.1 to Ex.B.6.
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absence of material to show that other heirs of Sundarrajan Servai, namely, a son and two daughters executed any sale deed in favour of the appellant, he is not entitled to get declaration of his absolute title over the suit property and consequently, his prayer for recovery of possession was not maintainable. Therefore, the first appellate Court dismissed the appeal. Aggrieved by the same, the appellant is before this Court.
“ (i) Whether the suit is barred for non-joinder of
the brother of the appellant herein as co-plaintiff?
(ii) Whether the Courts below are justified in not
relying upon Ex.B.4 in favour of the plaintiff on the ground that
the vendor's children wee not made as co-executants therein?
(iii) Whether the dismissal of the suit on the ground of omission to plead the exact date of encroachment by the
defendants is justified when the plea of adverse possession projected by the defendants had been rejected?”
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property by the respondents/defendants and hence, the suit should have been decreed in respect of the prayer for mandatory injunction. The learned counsel also tried to assail the findings of the Courts below that the suit for declaration of title is not maintainable in the absence of impleadment of siblings of the appellant. The learned counsel further submit that in respect of item-II, the same was purchased by the appellant from one Sarawathi, widow of its original owner Sundarrajan Servai and the son and daughters of Sundarrajan Servai have not been objected to the sale by Sarawathi. Therefore, the appellant is entitled to acquire good title and based on the conveyance deed executed by Saraswathi alone, the appellant is entitled to maintain the suit for declaration.
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categorically admitted that his father had seven children. Therefore, it is clear that after death of the father of plaintiff, all the seven children have got right over the item-I of the suit property. It is not explained by the appellant how he is entitled to declaration of his exclusive title over the suit property. The finding of the Courts below that the prayer for declaration is not maintainable for non-joinder of necessary party, namely, the siblings of the appellant, is in accordance with law and the same requires no interference from this Court.
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Sundarrajan Servai, were not added as parties to the sale deed. Therefore, the findings rendered by both the Court below that the appellant is not entitled to seek declaration of his title over second item of the suit property is also correct and the same needs no interference from this Court.
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(i) The Second Appeal is dismissed by confirming the judgment and decree, dated 01.02.2011, made in A.S.No.17 of 2009 on the file of Subordinate Judge, Sivagangai, confirming the judgment and decree dated 18.08.2008 made in O.S.No.183 of 2000, on the file of District Munsif, Sivagangai; and
(ii) In the facts and circumstances, there will be no order as to costs.
10.01.2023
NCC : Yes/ No Index : Yes / No Internet : Yes / No cp
To
3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
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S.A(MD)No.762 of 2011
S.SOUNTHAR, J.
CP
S.A(MD) No.762 of 2011
10.01.2023
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3 issues framed by the court
Whether the suit is barred for non-joinder of the brother of the appellant as a co-plaintiff?
Whether the courts below were justified in relying on the vendor's children not being co-executants in the sale deed?
Whether dismissal of the suit for omission to plead the exact date of encroachment is justified when adverse possession was rejected?
1 provisions across 1 enactments
M.Chinnappan
R.Meenal
K.Raman
S.Sounthar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
