Second appeal by the plaintiff in a declaration and injunction suit over land extent. The court found the plaintiff received only 1.95 acres under the release deed and could not claim more, held no substantial question of law arose, and dismissed the appeal, confirming the first appellate court's reversal of the trial court decree.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2024
CORAM :
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.No.253 of 2013 & M.P. Nos.1 & 2 of 2013
Sengodan
... Appellant
Vs.
1.Thangavel Nadar(deceased)
(RR2 to 5 are recorded as Lrs of the deceased sole respondent viz.,Thangavel Nadar vide order of Court dated 26.02.2019-PRMJ)
Prayer :- This Second Appeal has been filed under Section 100 of Civil Procedure Code against the Judgment and decree dated 31.01.2012 in A.S.No.83 of 2007 on the file of the learned Sub Judge, Namakkal reversing the judgment and decree dated 09.04.2007 passed in O.S.No.360 of 2005 on the file of the Court of the Additional District Munsif, Namakkal.
For Appellant : Mr.P.Mohanraj
For Respondents : Mr.C.Jagadish
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JUDGMENT
This Second Appeal has been preferred against the Judgment and decree dated 31.01.2012 in A.S.No.83 of 2007 on the file of the learned Sub Judge, Namakkal reversing the judgment and decree dated 09.04.2007 passed in O.S.No.360 of 2005 on the file of the Court of the Additional District Munsif, Namakkal.
framed:
(a) Whether the Lower Appellate Court erred in law in deciding the Appeal as well as the interim application filed by the plaintiff/appellant under Order 41 Rule 27 CPC seeking to file additional documents simultaneously without giving opportunity to the plaintiff/appellant to challenge the order of rejection of the said application, especially, when it is contended that those documents sought to be marked before the Lower Appellate Court are in support of the plaintiff /appellant to disprove the case of the defendant?
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3.The appellant before me is the plaintiff in the suit. He had presented O.S.No.360 of 2005 before the Additional District Munsif Court at Namakkal. In the said suit, he claimed for declaration that the suit schedule mentioned property belongs to him and for consequential reliefs of permanent and mandatory injunctions.
4.The predecessor in title of the plaintiff and the defendant are one and the same. They were three persons, namely Muniappa Nadar, Karuppa Nadar and Nachimuthu Nadar. The respondents were the first to purchase a portion of the entire holding from these predecessors in title. It was by a Sale Deed dated 29.05.1954. The plaintiff parents had purchased the property under Ex.A2 dated 14.02.1959 and Ex.A3 dated 09.09.1960 and Ex.A4 dated 12.09.1960.
5.The confusion arose in the present case is because the purchase that had made in the year 1954, i.e. on 29.05.1954 was to the extent of 2/3rd of the property situated in Mitta Survey No.9 and that left out 1/3rd portion of land. The balance of 1/3rd was sold by one Arumuga Gounder,
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Nachimuthu Nadar and Varadappa Gounder, who were the subsequent purchasers of the property, in favour of the father and mother of the plaintiff.
6.On the death of Chinnen and Palaniammal, the property came to be vested in their legal heirs. The legal heirs entered into a Release Deed under which, the plaintiff came to possess 1.96 acres of land in S.No.102/2. The property in which the defendants are in possession is in S.Nos.102/1A and 102/1B. It is admitted by both the parties that the land lying between S.Nos.102/2 and 102/1B is divided by Kalkatti (the wall constructed by using stones). It has come to notice during the course of evidence of PW1 as well as the report of the Advocate Commissioner that the stone wall runs nearly to the entire extent from north to south of the property. The dividing wall was constructed by using stones, which had been taken from the well situated nearby.
7.The plaintiff was emboldened to file the suit on account of the fact that as per document dated 29.05.1954, the defendants had
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purchased only 4.25 acres and since the original owners were possessing 6.38 acres, it is the claim of the plaintiff that he is entitled to the remaining portion. A perusal of Ex.B1 would show that Muniappa Nadar and Karuppa Nadar, on division, had alienated the property on 14.09.1978 under Ex.B1 and the extent mentioned therein is 4.43 acres. The extents mentioned under Ex.A1 and Ex.A2 are under Old Survey number i.e., Mitta survey number but the extents under Ex.A4 and Ex.B4 after re-survey had been conducted. This is the reason there has been difference in the extents. The predecessors in title of the plaintiff had purchased 1/3rd share which had fallen to the share of Nachimuthu Nadar. However, while dividing the property in and by metes and bounds in the family of the plaintiff, the extent that had been allotted to the share of the plaintiff is only 1.95 acres. The Advocate Commissioner has found that the plaintiff's portion is about 1.96 acres. The title deed of the plaintiff is the release deed and in the release deed what was allotted to him was only 1.95 acres.
8.Prior to the filing of the present suit, another suit relating to the present suit property, namely O.S.No.346/1985 had been filed on the file
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of the District Court, Rasipuram. The Court proceedings had been filed before the trial Court in this suit as Exs.A5 & A6. A perusal of the claim made by the plaintiff therein under whom the present plaintiff claims and the decree shows that what is in occupation and what is possessed and owned by the plaintiff was as follows:
In Kalyani Village at Namakkal District in S.No.102/2 and an extent
of 1.95 acres.
mjd;go jhd; jhth brhj;J vdf;F ghj;jpag;gl;lJ/ nkw;go gj;jpug;go vdf;F 1/95 Vf;fh; epyk; ghj;jpag;gl;lJ/ mjd; rh;nt vz;/102-2 MFk;/ th/rh/M/1y; nky;g[wk; uhkrhkp ehlhh; epyk; ,Ug;gjhft[k;. mjd; rh;nt vz;/102-1 vd;Wk; fhl;lg;gl;Ls;sJ vd;why; rhpjhd;/ th/rh/M4y; kpl;lh rh;nt vz; 9y; 6 Vf;fh; 38 brd;l; tp!;jPh;dk;. ,jpy; ey;yz;z ehlhUf;F nky;g[wk; Vf;fh; 4/43 nghf fpHg[wk; Vf;fh; 1/95 cs;s epyj;jpy; 1-3 g';F fpiuak; bgWtjhf fz;Ls;sJ vd;why; rhpjhd;/
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nkw;go Mtzj;jpy; fz;Ls;s ey;yz;z ehlhhpd; epyj;ij jhd; 1k; gpujpthjpapd; jfg;gdhh; fpiuak; bgw;Ws;shh;/ 1978y; fpiuak; bgw;whu; vd;why; rhpjhd;/ nkw;go brhj;J rh;nt vz;/102-1y; cs;sJ/ nkw;go rh;nt vz; brhj;ij jhd; 1k; gpujpthjpa[k;. mtUila rnfhjhpa[k; gphpj;Jf; bfhz;lhh;fs; vd;why; rhpna/ ey;yz;z ehlhhplk; ,Ue;J 1k; gpujpthjpapd; jfg;gdhh; fpiuak; bgw;w gj;jpuj;jpy;. epyj;jpd; tp!;jPh;zk; Vf;fh; 4/43 brd;l; vd;W Fwpg;gpl;Ls;sJ vd;why; rhpjhd;/ vd;Dila ghfghj;jpa tpLjiy gj;jpuj;jpYk; vd;Dila brhj;jpd; tp!;jPh;zk; Vf;fh; 1/95 vd;W Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;/
10.A perusal of this evidence makes it clear that the plaintiff had obtained only 1.95 acres by way of release deed. Therefore, he cannot make a claim for a larger extent than the extent of land which had been described under Sale Deed dated 29.05.1954. Therefore, I do not find any error or irregularity in the judgment of the lower appellate Court and also any substantial question of law arising in this Appeal.
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11.Now having the question of law framed, the Hon'ble Supreme Court in “ Union of India versus Ibrahim Uddin and another” reported in (2012) 8 SCC 148, has held that the existence of substantial question of law is sine qua non for the exercise of jurisdiction under the provisions of Section 100 of CPC. The Court, held that for the reasons to be recorded, the High Court may entertain a second appeal even on any substantial question of law, not formulated by it, if Court is satisfied that the case involved such a question. But as stated supra, I do not find any such substantial question of law in order to entertain the present appeal. Further, an application filed under Order 41 Rule 27 of CPC has to be dealt with only along with the appeal and not separately. This is exactly what has been done by the appellate Court. Accordingly, the substantial question of law framed is answered against the appellant.
12.At this stage, Mr.Mohanraj, learned counsel for the appellant submits that there are two samadhis, one belongs to his client's first wife and the other belongs to his father in the boundaries situated at S.Nos.102/2, and 102/1B.
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13.Mr.Jagadish, learned counsel for the respondents had fairly stated that samadhis will not be disturbed at all. Accordingly, the statement of the learned counsel for the respondents, is recorded.
that the respondents will not disturb Samadhis, the Advocate Commissioner's plan filed as Ex.C2 shall form part of the decree.
11.01.2024
dn
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V.LAKSHMINARAYANAN.J,
dn
To
1.The Sub Judge, Namakkal
2.The Additional District Munsif, Namakkal.
SA.No.253 of 2013
11.01.2024
2 issues framed by the court
Whether the lower appellate court erred in deciding the appeal along with the Order 41 Rule 27 CPC application for additional documents without separate opportunity to challenge its rejection.
Whether a substantial question of law arises to entertain the second appeal under Section 100 CPC.
Colour shows how this judgement treated each authority
Union of India versus Ibrahim Uddin and anotherRelied on¶11
(2012) 8 SCC 148 · Who else cites this
2 provisions across 1 enactments
Sengodan
Thangavel Nadar (deceased)
Soodamani
Dravidamani
Kavimani
Lakshmi
V.Lakshminarayanan
As recorded by the court registry
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