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2018 Supreme(Mad) 4508
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Manu Kounder and Others – Appellants
Versus
Porapathai and Others – Respondents
Second Appeal No. 1076 of 2004
Decided On : 21-12-2018
Advocate Appeared:
For the Appellant : T. Dhanyakumar.
For the Respondents: V. Girishkumar, R. Aswini.
Headnote:
Civil Procedure Code,1908 - Section 100 - Companies Act, 1956 - Specific Relief Act - Section 26 - Suit for land possession - Suit for permanent injunction - Sale deed - Suit property morefully described in plaint was originally owned by one - Said suit property is adjacent to land in which is also owned by - Father of plaintiffs one had purchased land in from and got sale deed registered - Rest of land in was purchased by from and got sale deed registered - While preparing sale deeds due to inadvertence suit property which is lying in measuring to extent of ares situated at Thirunarakundram village within territorial jurisdiction of Thiruvennainallur Sub Registrar Villupuram District not mentioned - However after purchasing entire land owned by vide these two sale deeds father of plaintiffs was in absolute possession and enjoyment of land including suit property - He died leaving behind plaintiffs as his legal heirs - After death of property is in possession and enjoyment of plaintiffs and joint patta has been issued in name of plaintiffs - For more than years they are enjoying same and paying kists - Whether sale deeds are valid and true? Whether property in was allotted to father of defendant through oral partition? Whether plaintiffs are in possession and enjoyment of suit property? Whether plaintiffs are entitled for suit relief? To what other relief? - Whether lower court judgment and decree in liable to be dismissed? Whether appeal can be allowed? - Whether plaintiffs can claim right and title over suit property without claiming or seeking relief of rectification of as provided under Section 26 of Specific Relief Act? Whether plaintiffs have established their right title and interest over suit property on basis of? - Held , Plaintiffs have probablised case in respect of suit property that their father has purchased suit property from - Though survey number of suit property is not mentioned in sale deed possession was given to plaintiffs - Claim of defendants that died issueless and therefore defendant has inherited share of including suit property which was not alienated by during his life time was found to be factually incorrect by trial Court for reasons that defendants have not established that died issueless - Defendant from whom first defendant has purchased suit property is not legal heir of - One of boundary of property covered in shown as which includes land - Contention of plaintiffs that his father has purchased property from and his two sons is found to be true and valid since plaintiffs are in possession and enjoyment of suit property continuously and same never objected by till his death despite property included in patta issued to plaintiffs under UDR scheme - So they are entitled for injunction and declaration - When plaintiffs claim that survey number of suit property has been omitted inadvertently by vendor in sale deed remedy available to plaintiffs is to seek for rectification of sale deed under Section 26 of Specific Relief Act - Plaintiffs without resorting to rectification of sale deed cannot seek for declaration - Further when there is a sale deed executed by defendant in favour of first defendant without challenging validity of said sale deed plaintiffs cannot get declaration regarding title - Court finds that there is no error in judgments of Courts below and Substantial Questions of law framed by this Court are answered affirmatively in favour of plaintiffs/respondents - Second Appeal Dismissed
JUDGMENT :
G. JAYACHANDRAN, J.
Prayer: Second Appeal has been filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 29.01.2004 made in A.S. No. 28 of 2003 on the file of the II Additional Subordinate Judge, Villupuram confirming the judgment and decree dated 29.04.2002 made in O.S. No. 127 of 2001 on the file of the II Additional District Munsif, Ulundurpet.
1. Defendants 1 to 4 in the suit are the appellants before this Court in this Second Appeal. For the sake of convenience, the parties are described as per their ranking and description in the plaint.
2. Respondents 1 and 2 are the plaintiffs, who have laid the suit for declaration of title and permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property.
3. The Brief averments in the plaint is that the suit property morefully described in the plaint was originally owned by one Pichakarachi ammal @ Chellammal and Chinnaiya Udayar. The said suit property is adjacent to the land in S. Nos. 120/1 and 120/2, which is also owned by Pichakarachi ammal @ Chellammal and Chinnaiya Udayar. The father of the plaintiffs one Marimuthu Gounder had purchased the land in S. No. 120/2 from Pichakarachi ammal @ Chellammal on 19.12.1959 and got the sale deed registered. The rest of the land in S. No. 120/1 was purchased by Marimuthu Gounder from Chinnaiya Udayar on 31.05.1969 and got the sale deed registered. While preparing the sale deeds, due to inadvertence, the suit property, which is lying in S. No. 118 measuring to the extent of 0.31.5 ares situated at Thirunarakundram village within the territorial jurisdiction of Thiruvennainallur Sub Registrar, Villupuram District not mentioned.
4. However, after purchasing the entire land owned by Pichakarachi ammal @ Chellammal and Chinnaiya Udayar vide these two sale deeds, the father of the plaintiffs Marimuthu Gounder was in absolute possession and enjoyment of the land including the suit property. He died leaving behind the plaintiffs as his legal heirs. After the death of Marimuthu Gounder, the property is in possession and enjoyment of the plaintiffs and joint patta No. 383 has been issued in the name of the plaintiffs. For more than 12 years, they are enjoying the same and paying kists.
5. While so, the first defendant along with the 6th defendant, due to previous enmity, had created documents as if the 6th defendant has sold the suit property to the first defendant. While the 6th defendant has no right or title over the suit property. By creating the false documents, the first defendant along with his sons viz. defendants 2 to 5 have attempted to trespass into the suit property on 25.04.2001. The defendants being powerful with men and money may dispossess the plaintiffs at any time and therefore, declaration and permanent injunction regarding the suit property are prayed for.
6. In the written statement filed by the first defendant and adopted by defendants 2 to 5, it is stated that Marimuthu Gounder has purchased only the property covering S. Nos. 120/1 and 120/2 from Pichakarachi ammal @ Chellammal and Chinnaiya Udayar. They never purchased the land in S. No. 118. The contention that due to inadvertence, the suit property in S. No. 118 has not been mentioned in the sale deed is false. The contention of the plaintiffs that their father Marimuthu Gounder was in possession and enjoyment of the suit property and after his life time, the plaintiffs are in possession and enjoyment of the suit property continuously for more than 12 years, is denied. Contrarily, the plaintiffs have purchased the suit property under S. Nos. 120/2 and 120/1 alone and not the property in S. No. 118. The suit property is the ancestral property of the 6th defendant. The father of the 6th defendant Adhimoola Udayar and his brothers by name Ramalingam Udayar, Sundara Udayar, Rathina Udayar, Lakshmana Udayar and Ganapathy Udayar were enjoying the property jointly as an ancestr
