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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. PONGIAPPAN, J.
T. Muthulakshmi - Appellant
Versus
State of Government of Tamilnadu, Rep. by its District Collector, Erode & Others - Respondent
S.A. No. 1207 of 2010
Decided On : 27-01-2022
Code of Civil Procedure, 1908 - Section 100 and 80(2) - Second Appeal - Registered sale deed - Plaintiff is sole daughter of 1st plaintiff (now deceased) - Suit properties originally belonged to one by virtue of a registered sale deed - He sold properties in favour of plaintiff, by virtue of a registered sale deed - Description of the property, which was mentioned in sale deed - Whether both Courts below have misread documentary evidence and also oral evidence in dismissing case of plaintiff - Whether Courts below are in any event should have held that plaintiff has prescribed title to suit property by adverse possession, even if, Sale Deed does not contain entire property - whether plaintiffs were residing in house which was purchased – Held, Court is of considered opinion that present suit has not been filed with correct description of property. Further, contradictions found in description of property in would create a doubt whether plaintiff has purchased entire extent of 4200 sq.ft - applying principles set out in above referred judgment to the case in hand, law is well settled that for allowing relief of declaration, person, who prayed said relief has to prove his case - Weakness found in case of defendant cannot be taken into account for considering prayer sought by plaintiff - There was a lot of infirmities found in case of plaintiffs, particularly, in respect to title and possession - Therefore, in absence of satisfactory evidence in respect to title, relief of declaration cannot be granted - Courts below have also traversed in same line and decided suit concurrently as plaintiffs are not entitled to any relief -Therefore, concurrent judgment and decree passed by Courts below, do not warrant any interference and same are confirmed - Second appeal dismissed.
JUDGMENT :
Prayer: This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 26.02.2010 made in A.S.No.63 of 2009 on the file of the learned Principal Subordinate Judge, Erode, confirming the judgment and decree dated 31.07.2009 made in O.S.No.68 of 2005 on the file of the First Additional District Munsif, Erode.
1. The Second Appeal is focused as against the judgment and decree dated 26.02.2010 passed in A.S.No.63 of 2009 by the learned Principal Subordinate Judge, Erode, confirming the judgment and decree dated 31.07.2009, made in O.S.No.68 of 2005 by the learned First Additional District Munsif, Erode. The suit is for declaration, injunction and for costs.
2. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court.
3. The laconic averments made in the plaint, are as follows:
1. 3 Anganam house measuring about 1800 Sq.feet.
2. 2 ½ Anganam measuring about 1500 Sq.feet
3. 30 x 30 Sq.feet measuring 900 feet.
(ii) The total property covered under the sale deed is 4200 Sq.feet, in which the plaintiffs, after dividing the same, prepared a plan and then sold some of the properties in the name of various persons. The remaining extent is separately shown as ‘B’ item and the plaintiffs took separate possession of an extent of 28x32 sq.feet i.e. about 896 Sq. feet. The properties already sold is shown as ‘A’ schedule and the same is situated on the Southern side in the suit plan. The said plan is produced herewith. The properties already sold by the plaintiffs, are narrated as under.
| 1 | On 20.02.1997 in favour of one Balasubramaniam | 1009.5 Sq.feet |
| 2 | On 20.02.1997 in favour of one Madeswaran | 900.0 Sq.feet |
| 3 | On 20.02.1997 in favour of one Arumugam | 813.0 Sq.feet |
|
|
| 2722.5 Sq.feet |
|
| Total extent of common pathway | 589.5 Sq.feet |
|
| Total | 3312.5 Sq.feet |
|
| Therefore the total extent purchased by the 1st plaintiff is | 4200.00 Sq.feet |
|
| Total extent sold with common pathway | 3312.00 Sq.feet |
|
| Remaining extent | 888.00 Sq.feet |
(iv) In earlier period, there was a house in the suit property and now the same is in a dilapidated condition. The plaintiffs have already entered into a sale agreement in respect of the ‘A’ Schedule i.e., the properties sold to the third parties by virtue of sale deeds dated 20.02.1997. Since the defendants already attempted to alienate the property as if it belonged to the Government, there is a cloud over the title created by the defendants.
(v) The plea of the defendants is that the suit property and the adjoining land has already been allotted to the 4th defendant and afterwards, he has taken possession of the same on 31.05.1991. The patta stands in the name of the 4th defendant in respect to R.S.No.154/9 is not tenable. The suit property is lying only as a vacant land and it is
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