R.Narayanasamy Vs Ramaraj — Madras HC (2025) — LawSathi Research

R.Narayanasamy Vs Ramaraj — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the Ex.B12 the evidence of plaintiff's father which is not connected with the suit property can be looked into? +4 more

Court's answer

Ex.B12, the evidence of the plaintiff in O.S.No.268 of 1996 on the file of the Sub Court, Virudhunagar, is insufficient to hold title in favour of the first defendant (first substantial question answered accordingly).

Ratio / Principle

T.S.No.16 was subdivided into 16/1, 16/2 and 16/3, and a notice (Ex.B13) was issued for the property in S.No.16/3.

Key takeaways

Though the plaintiffs pleaded that the suit property and southern-side properties were ancestrally owned by them, they filed no document showing title over the suit property.ratio¶20
The documents filed by the first defendant, i.e., Exs.B4, B6 and B7, are not pertaining to the suit property.ratio¶20
Neither the plaintiffs nor the defendant filed any document showing title over the plaint schedule property in T.S.No.16/2.

Detailed headnote1 paragraphs

Madras High Court (Madurai Bench), V.Sivagnanam J.; pronounced 30.01.2025; S.A(MD)No.1052 of 2005 — dismissed, no costs. Plaintiffs (R.Narayanasamy and others) had sued in O.S.No.121 of 2001 (District Munsif, Aruppukottai) for declaration of right over a suit pathway (ABCD) and permanent injunctions against Ramaraj and the Commissioner, Aruppukottai Municipality; the trial court decreed, but the Sub Court, Aruppukottai allowed the defendant's appeal (A.S.No.42 of 2004). Answering the four substantial questions framed at admission, the High Court held: (i) Ex.B12, prior evidence of the plaintiffs' father in O.S.No.268 of 1996, is insufficient to establish the defendant's title; (ii) the first appellate court's finding that the suit property was worth less than Rs.100/- (and so needed no registration) is unsupported by any evidence; (iii) its finding that settlement deed Ex.B7 stood proved is correct; and (iv) it was right in reversing the trial decree — the plaintiffs failed to prove title to the plaint schedule property in T.S.No.16/2, and in fact neither side filed any title document over it, the defendant's Exs.B4, B6 and B7 not pertaining to the suit property. Precedents cited by both sides were held unhelpful.

S.A(MD)No.1052 of 2005

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on	20.01.2025
Pronounced on	30.01.2025

CORAM

THE HON'BLE MR.JUSTICE V.SIVAGNANAM

S.A(MD)No.1052 of 2005

1.R.Narayanasamy

2.V.R.Rajendran

3.Mangaleswari

4.Banumathi

5.Kwsalya Devi

... Appellants

-vs-

1.Ramaraj

2.The Commissioner, Aruppukottai Municipality, Aruppukottai Town, Virudhunagar District.

..Respondents

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PRAYER

PRAYER : Second Appeal filed under Section 100 Code of Civil Procedure against the Judgment and Decree made in A.S.No.42 of 2004 dated 11.07.2005 on the file of the Subordinate Court, Aruppukottai reversing the Judgment and Decree made in O.S.No.121 of 2001 dated 28.09.2004 on the file of the District Munsif, Aruppukottai.

For Appellants ... Mr.V.Radhakrishnan Senior Counsel for Mr.S.Kadarkarai For Respondents ... Mr.V.Srinivasan for R1 No appearance for R2

JUDGMENT

The Second Appeal has been filed against the Judgment and Decree passed in A.S.No.42 of 2004 dated 11.07.2005 on the file of the

Subordinate Judge, Aruppukottai reversing the Judgment and Decree passed in O.S.No.121 of 2001 dated 28.09.2004 on the file of the District Munsif, Aruppukottai.

For the sake of convenience, the parties are referred to as per

their ranking in the Trial Court.

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3.The plaintiffs in O.S.No.121 of 2001 on the file of the District Munsif, Aruppukottai are the appellants herein.

The first plaintiff is the father and the second and third plaintiffs

are the sons. Pending suit, the first plaintiff died. His other children are impleaded as the plaintiffs 4, 5 and 6. The suit property is the ancestral property of the plaintiffs. On the southern side portion of their house, they used cattle shed and used the suit property to reach the road on the norther side. In the plaint rough sketch, the suit property is mentioned as ABCD. The first plaintiff's father Veerappa Naickar purchased a property by way of a sale deed dated 12.10.1944. Subsequently, he sold to one Krishnasamy Naickar on 28.11.1944 by way of a registered sale deed. From Krishnasamy Naickar, the first defendant purchased the property. From the sale deeds, east boundary is shown as the suit property. In the plaint schedule, the first defendant's property is shown as FADE. The suit property is shown as ABCD. In the suit property, the defendants had no right and enjoyment. Since the defendant interfered with the plaintiffs' enjoyment, the plaintiffs filed the suit for declaration

of right over the plaint schedule property and for permanent injunction restraining the defendant from interfering with the peaceful possession

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S.A(MD)No.1052 of 2005

and enjoyment of the plaint schedule property and also permanent injunction restraining the second defendant not to grant planning permission to the first defendant on the basis of the plan submitted by the first defendant.

5.The first defendant filed a written statement and contested suit.

The first defendant denied the allegations contained in the plaint. He further contended that the suit property is the form part of the property which was settled in his favour by his father under a settlement deed. The first defendant enjoyed the property for a long period. The plaintiffs have no right and title over the same. He further contended that the first defendant used the suit property to reach the main road on the norther side. The suit property reached to north municipal road on the northern side and thus, pleaded to dismiss the suit.

6.On the basis of the above said pleas set out by the respective parties, the following issues were framed by the Trial Court for consideration:

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jhth nrhj;J thjpfSf;F ghj;jpag;gl;ljh?

2.jhth nrhj;J thjpfspd; mDgtj;jpy; ,Ue;J tUfpwjh?

jhth nrhj;J 1k; gpujpthjpf;F jdpj;J ghj;jpag;gl;lJ vd $WtJ rhpah?

thjp NfhUk; tpsk;Gif ghpfhuk; mtUf;F fpilf;fj;jf;fjh?

thjp NfhUk; epue;ju cWj;Jf;fl;lis ghpfhuk; mtUf;F fpilf;fj;jf;fjh?

thjpf;F fpilf;ff;$ba ,ju ghpfhuq;fs; vd;d?

Before the Trial Court, on the side of the plaintiffs, the second plaintiff examined as P.W.1 and marked 6 documents as Ex.A1 to Ex.A6. On the side of the defendants, the first defendant examined himself as D.W.1 and marked 14 documents as Ex.B1 to Ex.B14. Besides, 4 court documents have been marked as Exs.C1 to C4.

The Trial Court, after considering the oral and documentary evidence, declared the right of the plaintiffs over the suit property ABCD and provided right of pathway to the first defendant and granted injunction against the second defendant granting approval and thus, decreed the suit. Aggrieved by this, the first defendant preferred an

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appeal in A.S.No.42 of 2004 on the file of the Sub-Court, Aruppukottai. The First Appellate Court, by its Judgment dated 11.06.2005 allowed the appeal and set aside the judgment and decree of the Trial Court. Aggrieved by this, the plaintiffs filed the present second appeal.

While admitting the second appeal, this Court has formulated

the following substantial questions of law:-

“1.Whether the Ex.B12 the evidence of plaintiff's father which is not connected with the suit property can be looked into?

Whether the lower appellate Court is correct in holding of that the suit property is less than Rs.100/- and requires no registration in the absence of such plea?

Whether the lower appellate Court's finding Ex.B7 has been proved is correct in the absence of the production of original documents and examination of attesting witnesses?

Whether the Lower Appellate Court is correct in reversing the findings of the trial court without assigning the reasons to disagree with the findings of the trial Court?.”

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The learned Senior Counsel appearing for the appellants submitted that the plaintiffs 2 to 6 are the appellants in the instant second appeal. This suit was filed originally by V.Ramasamy Naicker. R.Naranasamy and V.R.Rajendran on 06.06.2001 before the District Munsif Court Arruppukkottai against the defendants Ramaraj and Aruppukottai Municipality praying for a declaration of decree (a) to declare that the suit property belongs to the Plaintiffs and (b) for a permanent injunction restraining the defendants from interfering with the plaintiffs' peaceful possession of the suit property and (c) for permanent injunction restraining the 2^nd defendant not to grant planning permission to the first defendant on the basis of plan submitted by the 1" defendant claiming that the suit property belongs to him. The case of the plaintiffs is that the suit property is described as ABCD in plaint plan Ex.A1. The plaintiffs have contended that this suit property belongs to them absolutely as their ancestral property and that the first defendant has no right or title over the said property. The property on the east and south of the suit property belongs to them as ancestral properties. The suit property is a vacant site which forms part of other properties and is also owned by the plaintiffs as ancestral property and the same has been used

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by them as pathway to reach the main road. He further submitted that the property situate on the western side of the suit property was originally owned by Veerappa Naicker, who is the father of the first plaintiff by virtue of sale deed dated 12.10.1944 (Ex.A2) purchased from one Gurusamy Naicker. In this documents, besides giving measurements of the property purchased, boundaries have been, which would indicate that properties on the eastern and southern side of the property purchased under Ex.A2, belongs to Veerappa Naicker. This property, purchased under Ex.A2 was sold by Veerappa Naicker under a registered sale deed dated 28.11.1944 (Ex.A3/Ex.B5) to one Krishnasamy Naicker, son of Perumal Naicker. In this document, the boundary description is same as found in the sale deed dated ExA2. Thereafter, the said Krishnasamy Naicker sold this property to his brother Gopalsamy Naicker by a registered sale deed dated 31.10.1964 (Ex.B6). The said Gopalsamy Naicker under a settlement deed dated 05.09.1985 (Ex.B7) settled the very same property in favour of his son, the first defendant. The first defendant attempted to trespass into the suit property claiming right in the suit property, which resulted in the filing of the suit for the aforesaid reliefs. He further submitted that the suit property and the property now owned by the first defendant were originally owned by Veerappa

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Naicker/father of the first plaintiff. It is true that while the other properties including the suit property are his ancestral properties, the property on the western side of the suit property was purchased by him under a registered sale deed Ex.A2 from one Gurusamy Naicker. It is true that in this document survey number is not mentioned. Again when he sold the said property under Ex.A3, no survey number is mentioned. However, it is admitted case of both parties that the property covered under Exs.A2 and A3 wherein measurements and specific boundaries were given, relate to the property owned by the first defendant. The First Appellate Court failed to see that Krishnasamy Naicker who had purchased the property under a sale deed Ex.A3 from Veerappa Naicker/father of the first plaintiff has tacitly admitted that the property on the eastern side belongs to Veerappa Naicker, which included the suit property. However, when he sold it to his brother Gopalsamy Naicker under Ex. B6 he has modified the boundary as “ek;ks; nrhe;j eilghij”. In this document for the first time door number is given as 12-3-1B in ward 22. Again the same boundary description has been repeated in the settlement deed Ex.B7. Additionally, for the first time, survey number has been given as Natham survey 148/55. In none of the documents, town survey number has been given, however in Ex. A5

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Field Map relating to T.S.No.16, 29, 30, 32, no subdivision has been indicated. Strangely, the First Appellate Court, in paragraph 8 of the Judgment, has completely misread the evidence in Ex.A5 and has wrongly assumed that T.S.No.16 was sub-divided into 16/1, 16/2 & 16/3. On that basis, the First Appellate Court has proceeded to consider Ex.B6, wherein also, there was no sub-division of T.S.No.16. The door number again relates to property sold under Ex.B6. Therefore, the assumption of the First Appellate Court that there was superstructure in the suit property has no basis. It is therefore submitted that the findings of the First Appellate Court regarding Ex.A5 and A6 are vitiated by Doctrine of Perversity and the same is liable to be set aside.

11.The learned Senior Counsel further submitted that the First Appellate Court in paragraph 11, while considering the evidence of DW1, who referred to Ex.B4 and B5, has stated that the suit property is on the eastern side of the subject matter of property in Ex.B4 and B5 and in respect of Ex. B5 has stated that it was executed for the property on the western side of the suit property. The First Appellate Court wrongly assumed that the plaintiffs have claimed door number 18-3-1B. Therefore, it is submitted that the finding rendered in paragraph 11 is

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S.A(MD)No.1052 of 2005

contrary to the evidence on record and he has failed to consider the actual measurements given in the documents Exs.B5, B6 & B7 and they conclusively confirm that measurements given therein do not take in the suit property. Therefore this finding of the First Appellate Court is also vitiated by perversity and is liable to set aside. He further submitted that the First Appellate Court, while considering the boundary description “ek;ks; nrhe;j eilghij” contained in Ex.B6 and B7 has failed to see that such a pathway was not found in either Ex.A2, the 1^st sale deed or Ex.A3 sale deed executed by Veerappa Naicker to Krishnasamy Naicker. It is therefore submitted that Krishnasamy Naicker had no right, interest or title to describe the western boundary as “ek;ks; nrhe;j eilghij” for the 1^st time. Again the First Appellate Court has taken into account Ramasamy Naicker, 1^st plaintiff has attested both the documents sale deed Ex.B6 and settlement deed Ex.B7 and therefore, he had knowledge that the suit property has been treated as “ek;ks; nrhe;j eilghij”. It is need less to state that an attesting witness need not necessarily know the contents of the documents. At best that it can be said that he was aware of the execution of the documents. It is therefore submitted that the finding of the First Appellate Court that 1^st plaintiff Ramasamy Naicker was aware of the contents of the documents in Ex.B6

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and B7 is contrary to the settled principles of law.

12.The learned Senior Counsel further submitted that recently the

Hon'ble Supreme Court in the Judgment dated 25.09.2019 passed in Civil Appeal No. 8824/2011 has held that the witness need not necessary know about what is contained in the document. Therefore, the findings rendered by the First Appellate Court based on misreading of evidence on record are contrary to law. The First Appellate Court in paragraph 13 has stated that late.Ramasamy Naicker had earlier given evidence as PW1 in O.S No. 268 of 1996, wherein he has stated that the property in front of Ramaraj property was given to Ramaraj's father by Ramasamy Naicker. In that context, the First Appellate Court has assumed that the value of the suit property which measured about 410 Sq. ft, would be less than Rs.100/- and therefore, it does not require registration. For the above finding, there was neither pleadings nor evidence to show that the value of the property is under Rs.100/-. It is not even the case of the first defendant either. Therefore, this finding of the First Appellate Court is also liable to be set aside as perverse. In this context, it is necessary to refer the recent Judgment of the Hon'ble Supreme Court in the case of

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Azgar Barid (dead) by Legal representatives and other vs Mazambi alias reported in (2022) 5 SCC 334 , wherein, the Hon'ble Supreme Court has held that perversity in arriving at a factual finding gives rise to a substantial question of law attracting intervention of the High Court under Section 100 of CPC.

The learned Senior Counsel further submitted that the First Appellate Court failed to see that the 1^st defendant as DWI in his oral evidence has categorically admitted that they did not obtain any document either by his father or his paternal uncle Krishnasamy Naicker separately in respect of the suit property and he does not know as to how the description of “ek;ks; nrhe;j eilghij” has been inserted in Ex.B6. This vital admission in the evidence of DWI has been completely ignored by the First Appellate Court. He has also admitted in cross examination that the suit property was not included in the sale deed Ex.B4. In this context, it is to be seen that the first defendant in the written statement has stated that the suit property form part of the property purchased under Ex.B6 - A3. Again the First Appellate Court has failed to consider the evidence of PW1 who has asserted that the suit property form part of the ancestral property and was never given to the

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father of the first defendant, Ramaraj. The First Appellate Court erred in taking into account of Ex.B12 evidence given by Ramasamy Naicker in an earlier suit, in which, the defendant was not a party. Therefore, the previous evidence of Ramasamy Naicker was not put to confrontation by first defendant. When third plaintiff was examined as PW1, he was not recalled to get any clarification. Therefore, Ex.B12 is not admissible in evidence. The First Appellate Court should have eschewed evidentiary value of Ex.B12. He further submit that the findings rendered by the First Appellate Court are completely vitiated by perversity and it is liable to set aside.

14.In support of his contention, the learned Senior Counsel has produced the following judgments:-

(i) ( 2016)3 SCC 78 (Daodar Lal Vs.Sohan Devi and other)

(ii) (2022) 5 SCC 334 (Azgar Barid (dead) by Legal representatives and other vs Mazambi alias)

(iii) (2021)15 SCC 234 (Narayan Sitramji Badwaik (dead) through LRs Vs. Bisaram and others)

(iv) 2015 (2) CTC 139 (Thukkaram vs. Shanthi

Varadharajan)

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15.The learned counsel for the first respondent/first defendant submitted that the suit property is only a pathway measuring east west 13 1/3 feet or 4 meters and north south 31'3''. In Ex.A1 Rough Sketch, S.T.Ramasamy Street on the north i.e., east west road ABCD is the suit property. It was linked with the street on the north reaching Ramasamy Road. ABCD is the first defendant's house. One Gurusamy has sold the first respondent's property in favour of Veerappa Naicker on 12.10.1944 i.e., FADE portion in plaint sketch (Ex.A1) where the first defendant has put up the construction. The above said purchaser Veerappa Naicker in turn sold the above property in favour of one Krishnasamy Naicker who is none other than the brother in law of Veerappa Naicker by deed dated 28.11.1944. The above said vendee in turn sold the above property in favour of his brother Gopalsamy Naicker, who is none other than the father of the first defendant by deed dated 31.10.1964. In that deed, the first plaintiff deceased Ramasamy has attested the document as one of the respective witnesses. The above said vendee Gopalsamy Naicker in turn gifted the above property in favour of his son/the first defendant by

a registered gift deed dated 05.09.1985. After settlement, the first defendant has put up ground floor. The Town Survey register has been 15/23

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marked as Ex.A6. It is mentioned that T.S.No.16 (Old Natham S.No. 148/550) Door No.18-3-1B and in adangal column is mentioned as 1501. The suit property has become necessity pathway ever since 30.10.1964 (Ex.B6) as per record and that has been shown even before the year 1964. The pathway is a total necessity to reach the street (T.S.No.22) on the north proceeding upto east west road. The suit property is situated in middle portion of T.S.No.16, in Block No.26, Municpal Ward No.C. In Ex.A1 the suit property was clearly described in the plaint as ABCD. It is interesting to note that the Commissioner has inspected the suit property twice and submitted his report with sketches (Exs.C1 to C4). The first sketch of the Commissioner is Ex.C2. A reference will show that the north of the first respondent's house is T.S.No.17. The appellant's house is in T.S.No.32 and the suit property and also on the east of the suit property are all in T.S.No.16. The street leading to east west road is in T.S.No.22. The suit property is in S.No.16/2 and on the east of it 16/3 which is owned by the appellant herein. Similarly the defendant's house is situated only in S.No.16/1. Further, Ex.B13 is the survey notice of S.No.16/3 belongs to the first plaintiff and his sister Seethammal and Guruvammal. The First Appellate Court has correctly identified the property on perusal of Exs.C1 to C4. In Ex.A5, the field

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number is mentioned as 16 though on the northern side three measurements have been given as 20.8 meters, 4 meters, and 8.2 meters. The measurement of 12.8 meters, tallies with the measurement of the northern measurement of the first defendant's property. According to Ex.A5, the total measurement of the property in S.No.16/3 is 73.8 sq.mtrs., i.e., east wet 8.2 x north south 9 meters = 75 square meters., this measurement tallies with Ex.B13 measurement as 75 square meters. These measurement clearly confirms that the S.No.16 was subdivided as 16/1, 16/2 and 16/3. Further, this measurement was admitted by the plaintiff's/appellants and it was tallied with the description of the property as well as rough sketch Ex.A1. Further, the First Appellate Court clearly confirms that Ex.A2 = Ex.B4, Ex.A3 = Ex.B5, B6 and B7 are not directly related to the suit property. Those documents are related to the west of the suit property i.e., 1^st defendant's house. Both the appellant and the firs defendant has not filed any document related to the suit property. Under the above circumstances, the suit property has to be identified only on the basis of the four boundaries of Exs.A2, A3, B6 and B7. The western portion of the suit property was enjoyed by the first defendant and his father from the year 1964 onwards. On perusal of Exs.A2, A3, B6 and B7, it clearly confirms that the suit property was

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originally in the hands of Veerappa Naicker on perusal of the eastern boundary of Exs.A2 and A3. Subsequently, the suit property was in the hands of the first defendant and his father.

In support of his contention, the learned counsel has produced the following Judgments:-

(i) (2000)7 SCC 120 (Uttam Singh Duggal and Co., Ltd., vs. United Bank of India)

(ii) 2014(1) TNCJ 643 (Mad) (MB) (Thangamani

vs. Ganesan)

(iii) 2010(5) CTC 364 (S.R.Srinivasa and others vs. S.Padmavathamma)

(iv) (2008)7 SCC 85 (Goutam Sarup vs. Leela Jetly and others)

I have considered the matter in the light of the submissions

made by the learned counsel appearing on either side and perused the materials available on records carefully.

A perusal of the records, it reveals that the property is in T.S.No.16, Block No.26, Ward C is situated at Aruppukottai Municipality. The plaint schedule property is shown in the rough sketch filed along the plaint which is evidenced as Ex.A1. In Ex.A1, the plaint

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schedule property is shown as ABCD.

The Commissioner inspected the disputed property and filed a report with sketch, which were marked as Exs.C1 to C4. On the western side of the suit property, the first defendant's house is there and on the southern side of the suit property, the plaintiff's house and vacant site are situated in S.No.32. The suit property is clearly shown in the Field Map Ex.A5. Further, it is noticed that the T.S.No.16 was subdivided into 16/1, 16/2 and 16/3 and a notice has been issued to serve the property in S.No.16/3. The said notice is marked as Ex.B13.

According to the plaintiffs, in the pleadings in para 5, the plaintiffs claim that the suit property and other properties on the southern side are ancestrally owned by them. However, they have not filed any document to show their title over the suit property. It is also noticed that the documents filed by the first defendant i.e., Exs.B4, B6 and B7 are not pertaining to the suit property.

It is very clear that both the parties have not filed any

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document to show their title over the suit property. Now, the suit property is subdivided as T.S.No.16/2. Admittedly, neither the plaintiffs nor the defendant filed any document to show their title over the plaint schedule property in T.S.No.16/2. The documents filed by the plaintiffs in Exs.A1 to A6 and the documents filed by the defendants in Exs.B1 to B14 did not show the title of any one over the plaint schedule property in T.S.No.16/2. In Exs.B6 and B7, the suit property is shown as western boundaries. The contention of the first defendant is that the suit property was orally given to the first defendant's father and it was admitted by the plaintiffs in another suit which is evidenced as Ex.B12, however, it is not enough to hold that the first defendant had title over the suit property in T.S.No.16/2.

A perusal of the Commissioner's Report Exs.C1 to C4, it reveals that on the northern side of the suit property, a gate is fixed and two pillars are erected and an electric pump was fitted and the switch is in the first defendant's house. Further, the Commissioner noted that the first defendant had no pathway to reach the road on the northern side. The property is used by the first defendant as pathway. This fact has been considered by the First Appellate Court and the First Appellate

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Court has set aside the Judgment and Decree of the Trial Court and allowed the appeal suit. In my view, the decisions relied on by both the parties are not helpful to decide the case.

Ex.B12, the evidence of the plaintiff in O.S.No.268 of 1996 on the file of the Sub Court, Virudhunagar, is insufficient to hold the title in favour of the first defendant. The First Appellate Court's finding that the suit property is less than Rs.100/-, is not supported by any evidence. The First Appellate Court's finding that Ex.B7 has been proved, is correct. The First Appellate Court is right in reversing the finding of the Trial Court. The First Appellate Court well considered the evidence on record and found that the plaintiffs failed to prove the title over the plaint schedule property and thus, reversed the finding of the Trial Court with proper reason. I answered the substantial questions of law accordingly. I find no merit in the second appeal.

In the result, the Second Appeal fails and the same is

dismissed. No costs.

30.1.2025

NCC : Yes/No Index : Yes/No

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Internet: Yes skn To:

1.The Subordinate Judge, Aruppukottai. 2.The District Munsif, Aruppukottai.

3.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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V.SIVAGNANAM, J.

skn

Judgment made in S.A(MD)No.1052 of 2005

30.01.2025

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