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2019 Supreme(Mad) 3129
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
R. Tharani, J.
Manoharan and Ors. - Appellants
Versus
Karthiga Devi and Ors. – Respondents
S.A. (MD) No. 216 of 2009
Decided On : 15-11-2019
For the Appellant :P. Jeesi Jeeva Priya, Advocate
For the Respondent:R. Aravindan and K. Dhya for V. Jasmine, Advocates
Headnote:
Suit for declaration – Appeal is filed against the judgment and decree passed – Appellants herein are the defendants 1 and 2, the respondents 1 and 2 herein are the plaintiffs and the third respondent herein is the third defendant in the suit – Respondents 1 and 2 herein have filed a suit before the learned District Munsif, Thirumangalam for a prayer of declaration and for injunction – Suit was decreed by the trial Court. Against which, the appellants herein have filed an appeal in A.S. before the second Additional Sub Judge, Madurai – Learned second Additional Sub Judge, Madurai dismissed the appeal by confirming the Judgment and Decree of the trial Court – Against that judgment and decree, the appellants herein have filed this second appeal –Held, Appeal is against the concurrent judgment of the lower Courts, there is some necessity to go through the facts of the case to come to a correct conclusion – Perusal of the judgment of the lower Courts reveals that both the lower Courts failed to consider that paimash number given are admittedly wrong when there is no specific rectification deed to that effect and when there is no co-relating document to prove that Paimash is pertaining to the suit property, both the lower Courts came to a conclusion that the property belong to the plaintiffs – It is the duty of the plaintiffs to file document such as SLR copy, to prove that Paimash is relating to the suit survey number – Suit property is a vacant land – Plaintiffs had not filed kist receipt except one – Plaintiffs have not taken any steps for appointment of an Advocate Commissioner to locate the suit property to prove that the boundary of the suit property co-relates with the recitals in his title deeds and with the suit property on ground – Without considering the ground realities and without considering the property in dispute on ground, both the lower Courts decided the case on the basis of the boundary recitals in plaintiffs documents alone ignoring, which did not support the case of the plaintiff – When there is a dispute regarding the identity of the property, both the lower Courts fail to appoint a Court Commissioner to inspect the suit properties. second appeal is allowed.
JUDGMENT :
R. Tharani, J.
1. Heard the learned counsel on both the side.
2. This appeal is filed against the judgment and decree passed in A.S. No. 134 of 2007 dated 23.10.2008 on the file of the learned second Additional Subordinate Judge, Madurai confirming the Judgment and Decree dated 24.08.2007 rendered in O.S. No. 226 of 1998 on the file of the learned District Munsif, Thirumangalam.
3. The appellants herein are the defendants 1 and 2, the respondents 1 and 2 herein are the plaintiffs and the third respondent herein is the third defendant in the suit. The respondents 1 and 2 herein have filed a suit in O.S. No. 226 of 1996 before the learned District Munsif, Thirumangalam for a prayer of declaration and for injunction. The suit was decreed by the trial Court. Against which, the appellants herein have filed an appeal in A.S. No. 134 of 2007 before the second Additional Sub Judge, Madurai. The learned second Additional Sub Judge, Madurai dismissed the appeal by confirming the Judgment and Decree of the trial Court. Against that judgment and decree, the appellants herein have filed this second appeal. As per the order passed in C.M.P. (MD) No. 12441 of 2018, this Court decided to receive two documents as Exs. B15 and B16.
4. The case of the plaintiff herein is as follows:
The suit property comprised in old Paimash No. 320 new S. No. 199/5A1A of Thanakkankulam village with an extent of 20 cents with specified boundaries originally belonged to one Chellamuthu and that he sold the same to one Bose on 26.03.1990. The plaintiffs purchased the property on 10.07.1995 from Bose by way of a registered sale deed for valuable consideration. The plaintiffs and their predecessors in title are in continuous possession and enjoyment of the suit property for more than 20 years. Patta was also transferred in their name. The defendants are strangers to the suit property and they have attempted to interfere with the peaceful possession and enjoyment of the plaintiffs over the suit property on 15.05.1998 and therefore, the plaintiffs have filed the present suit seeking for a declaration of title over the suit property comprised in old Paimash No. 320 re-survey No. 199/5A1A of Thanakkankulam Village and for a consequential permanent injunction, restraining the defendants from in any way interfering with the plaintiffs peaceful possession and enjoyment of the suit property and for other related reliefs.
5. The averments of the written statement filed by the first defendant and adopted by the defendants 2 and 3 is as follows:
All the averments stated in the plaint are false except those that are specifically admitted and that the sale deeds in favour of the plaintiffs and their predecessor in title are fraudulent transactions as the original vendor viz., Chellamuthu himself has no right to deal with the suit property and that it is false to state that the plaintiffs and their predecessor in title alone are in continuous possession and enjoyment of the suit property. The defendants are in possession and enjoyment of the suit property, as they purchased the same from one Pitchai Pillai, through a sale deed dated 27.10.1981 and that it is false to say that the defendants attempted to interfere with possession of the plaintiffs over the suit property. Before issuing patta in favour of the plaintiffs, the Revenue Authorities had not conducted any enquiry nor gave notice to the defendant and the appeal filed by the defendants as against the aforesaid patta is still pending and hence, the suit is liable to be dismissed.
6. In the additional written statement filed by the defendants, it is stated that the patta with regard to the suit property has been issued only in the name of the defendants and the plaintiffs are not in possession of the suit property and hence, prayed for dismissal.
7. On the above said pleadings, the following issues were framed:
"(i) Whether it is true that the suit property comprised in old Paimash No. 320 and new S. No. 199/5A1A at Thanakka
