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2021 Supreme(Mad) 1495
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
N. SATHISH KUMAR, J.
S. Karmegam and Others – Appellants
Versus
Parvathi and Others – Respondents
S.A. No. 895 of 1999, C.M.P. No. 15075 of 2003
Decided On : 03-02-2021
Advocate Appeared:
For the Appellant : R. Sundar Srinivasan.
For the Respondents: S. Anand Chandrasekar for Sarvabhauman.
Headnote:
Civil Procedure Code,1908 - Section 41 Rule 27 - Palaniammal were in enjoyment of the property - Executed a settlement deed in respect of the properties in Survey - Peaceful possession of the suit property - Obtained a loan - When there is no dispute to Ex. B4, the title deed in favour of appellant's predecessor in title - Whether the non-consideration of the recitals therein conveying T.S. namely suit property to Kalimuthu Gounder is legally sustainable and not amounting to non-consideration of material document - Whether grant of declaration of title on the ground that appellant has not proved his exclusive title is legally sustainable and not amounting to placing burden of proof on the defendants - Plaintiff's ancestor Kandasamy Gounder owned the properties in Survey which are more fully shown in plan attached to the plaint - After his death, his only son The said Muthukaruppa Gounder settled the property in favour of his sister Ponnammal and her daughter settlement, Ponnammal and her daughter Palaniammal were in enjoyment of the property - Ponnammal had one son Kandasamy and the plaintiff is the son of the said Kandasamy - After the death of Kandasamy - Palaniammal executed a settlement deed in respect of the properties in Survey Nos. 751 and 752 in favour of first plaintiff - First plaintiff sold property in Survey - Second defendant and first plaintiff is in enjoyment of the property in S. No. 753 - First defendant is residing an extent of 646 sq. ft. in Survey in northern side of the suit property - Held, Restricted the width of the pathway to four feet in the eastern side - Admission of PW-1 in his evidence coupled with Ex. A4 and Ex. B 13 and Ex. B 14, it is clear that from the very inception, survey was treated as a common property - Entire block Survey owned by the plaintiff's predecessor in title and Survey No. 751 was purchased by the second defendant on the eastern side - First defendant predecessor-in-title has purchased the property under Ex. B7 equivalent to Ex. A7 - Learned counsel for first defendant has given much emphasis that under Ex. A7-sale deed, Survey was also sold in favour of first defendant and it is also included in the Court Auction sale - Court auction and sale deeds are subsequent to the original title deeds - Property has been dealt as the common property and mere inclusion of T.S. No. 752 as one of the properties in the Court auction, this Court is of the view that such inclusion alone will not convey any title to the first defendan - Having regard to the nature of the property, it is admitted by both sides that first defendant's house is situated in the northern side of Survey - Court holds that both the Courts below have not considered the documentary evidence properly - Courts granting declaration in favour of the plaintiffs in respect of the entire Survey No. 752 except a small piece of land as a pathway, are not in proper appreciation and therefore, the finding of the Courts below are certainly nothing but perverse - Court below can very well be interfered in the second appeal - Court taking note of Exs. A4, A13 and A14, holds that Survey only common to all land owners - nature of location and lie of the property and none of them have any right to make additional construction and improvement of the property - It should be kept only as a common property for all three for their ingress and egress to the respective portions - Appeal is allowed
JUDGMENT :
N. SATHISH KUMAR, J.
1. Aggrieved over the concurrent findings of the Courts below in declaring the title of the plaintiff in respect of Survey No. 752, the present appeal came to be filed.
2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.
3. The brief facts, leading to the filing of this Second Appeal, are as follows:-
(i) The plaintiff's ancestor Kandasamy Gounder owned the properties in Survey No. 751, 752 and 753, which are more fully shown in the plan attached to the plaint. After his death, his only son Mummoorthy Gounder inherited the properties and he was in enjoyment of the properties. The said Mummoorthy Gounder had sold the property in favour of his brother-in-law Muthukaruppa Gounder on 09.01.1983. The said Muthukaruppa Gounder settled the property in favour of his sister Ponnammal and her daughter Palaniammal on 18.12.1994. From the date of settlement, Ponnammal and her daughter Palaniammal were in enjoyment of the property. The said Ponnammal had one son Kandasamy and the plaintiff is the son of the said Kandasamy. After the death of Kandasamy, Palaniammal is in enjoyment of the property. The said Palaniammal executed a settlement deed in respect of the properties in Survey Nos. 751 and 752 in favour of the first plaintiff. Thereafter, the first plaintiff sold the property in Survey No. 751 to one Kalimuthu, namely, the second defendant and the first plaintiff is in enjoyment of the property in S. No. 753. The first defendant is residing an extent of 646 sq. ft. in Survey No. 750 in northern side of the suit property. In the title deed of the first defendant, the southern boundaries show that the properties in Survey Nos. 751, 752 and 753 belonged to Mummoorty Gounder. The first defendant, claiming right over the property in Survey No. 752, interfered with the peaceful possession of the suit property. Hence, the suit.
(ii) The first defendant admitted that originally, the suit property is owned by Kasi Gounder. The said Kasi Gounder obtained a loan from Subramania Chettiar. The said Subramania Chettiar filed a suit in O.S. No. 37 of 1907 and the property of Kasi Gounder was brought for sale in the above suit and the property has been purchased by Subramania Chettiar in court auction under Ex. B2. Thereafter, the said Subramania Chettiar sold the property to one Kalimuthu Gounder under Ex. B4. The said Kalimuthu Gounder enjoyed the property and he sold the property to one Subbiah Gounder under Ex. B5 and the said Subbiah Gounder settled the property in favour of his wife Palaniammal under Ex. B6 and the said Palaniammal was in enjoyment of the property and the first defendant purchased the property, namely, Survey No. 750, from the legal heirs of Palaniammal and from the date of purchase, the first defendant is in enjoyment of the property under Exs. A7 and B7. Besides, he also perfected the title to the property.
(iii) Disputing the claim of the plaintiff, the second defendant filed a statement to the effect that there is a pathway in Survey No. 752. The plaintiff is entitled to declaration other than the pathway situated in Survey No. 752.
(iv) Based on the above pleadings, the trial Court has framed four issues. On the side of the plaintiffs, 3rd plaintiff examined himself as PW-1 and Exs. A1 to A25 were marked and on the side of the defendants, DW-1 to DW-3 were examined and Exs. B1 to B12 were marked and Exs. C1 and C2 were marked.
(v) Based on the evidence and materials, the trial Court declared the property in favour of the plaintiffs except the eastern pathway leading to the principal lane.
(vi) The first Appellate Court concurred with the findings of the trial Court, however, restricted the pathway to 4 feet. Aggrieved against the same, the present Second Appeal is filed.
4. In the Second appeal, application in M.P. (MD) No. 1 of 2013 has been filed for production of additional documents, namely, Other Deeds executed by the predecessor-in-title o
