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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. SATHISH KUMAR, J.
Nellai Suriya - Appellant
Vs.
Thangam – Respondents
S .A.(MD).No. 229 of 2013
Decided On : 27-01-2020
Evidence Act, 1872 - Sections 101, 102 and 103 - Second Appeal - Entitled to declaration and injunction - Whether judgment and decree of lower appellate Court in decreeing suit by relying upon Exs. A3 and A10, which are after suit documents, is sustainable - Whether judgment and decree of lower appellate Court in fixing burden of proof on defend ant/appellant herein which is against Sections 101 to 103 of Evidence Act, 1872, is sustainable - Whether judgment and decree of lower appellate Court in decreeing plaintiffs suit without considering Ex.B1 which is prior to Ex.A1 is sustainable - Whether lower appellate Court is right in granting relief of declaration, when plaintiff shave not paid Court fee for same – Held, No doubt, in a suit for declaration, it is for plaintiffs to establish case and they cannot rely upon weakness in defendants' case - But on an analisation of oral and documentary evidence, this Court come to conclusion that plaintiffs have established their case on he basis of documents - It is also noted that defendants 2 and 3 claiming right on basis of purchase by mother, whereas they do not know where property lies - In fact, they executed a power of attorney in year 2000 in favour of first defendant, who is real estate man - This fact was established on record - Only when power agent has created a problem, suit came to be filed - Thereafter, 2 and 3 defendants were impleaded - Admittedly, bye-pass road come on survey number - Several house plots have been developed - Such being position, real estate man as a power agent taking interest to deal with property gives a clear inference that due to escalation of prices, such an attempt has been made by first defendant - After death of power agent, who said to have been murdered in some other circumstances, second and third defendants have sold property, pending litigation to present appellant - Appellant is pentente lit e purchaser and he purchased property - Conduct of defendants 2 and 3 in dealing with property, during pendency of appeal also cannot be ignored altogether - Therefore, pendente lite purchaser have purchased litigation cannot have a better right than vendor - Appeal stands dismissed.
JUDGMENT :
Aggrieved over the finding of the first appellate Court in reversing the judgment of the trial Court in dismissing the suit, the present second appeal is filed.
2. The brief facts leading to the filing of the appeal is as follows: The parties are referred to as per the rank in the trial Court for the sake of convenience.
The suit property originally belongs to one Shanmuga Konar, by virtue of his purchase, dated 27.08.1943. He had two sons. One is Vedhanarayanan Konar and Raman Konar. Vedhanarayanan Konar son Paramuthu has obtained a release deed from his only sister on 27.02.1991. Similarly, Raman Konar son Venkatachalaperumal has also obtained a release deed from his sisters on 27.02.1925. Accordingly, Paramuthu and Venkatachalaperumal become the absolute owners of the property. The first plaintiff has purchased the first item of the suit property from Paramuthu and Venkatachala Perumal on 20.03.1991. Similarly, the second plaintiff has also purchased the second item of the suit property on 20.03.1993 from Paramuthu and Venkatachalaperumal. Thereafter, the revenue records also changed. Patta was also issued in respect of first item of the property in Patta Nos.514 and 1661. Similarly, the second plaintiff has also obtained Patta in his name and the plaintiffs are enjoying the property continuously. They also obtained permission from the Local Planning Commission to put up a construction. The first defendant, who is totally a stranger to the suit property made an attempt to clear the bushes in the property on 10.06.2000. Hence, the plaintiffs have filed a suit in O.S.No.277 of 2000 originally for permanent injunction against the first defendant. Thereafter, in the appellate stage, the suit prayer was amended for declaration and for permanent injunction and defendant Nos.2 and 3 said to be the original owner of the suit property were impleaed in the suit itself.
3. The first defendant has filed a written statement as power agent of the defendants 2 and 3 and contended as follows:
The boundaries in the suit schedule is not correctly described and the northern boundary of both the first and second schedule is wrong. To the north of both the plaint schedule properties only Survey No.993/1A1 is situated. Therefore, the description of the suit property is not properly given in the plaint and the plaintiffs have suppressed the material facts.
4. Denying the rights of the plaintiffs, it is the contention of the defendants that immediate to the south of the Bye-pass road, the land in Survey No.993/1A1 is situated. One Dhrowpathi Ammal has purchased 16 ½ cents of land in Survey No.993/1, on 01.10.1942. The said Dhrowpathi Ammal has sold 3 cents out of 16½ cents to one Ramaiah Nadar in the year 1973, by registered sale deed, dated 31.03.1973. The remaining 13½ cents was in actual physical possession of the said Dhrowpathi Ammal till her death as an absolute owner. After the death of the said Dhrowpathi Ammal, her son by name Rathinasami and her daughter by name Subbammal / the defendants 2 and 3 are in joint possession and enjoyment of 13½ cents of land in Survey No.993/1A1. Since the defendants 2 and 3 are residing outside the village, they gave a power of attorney to the first defendant, by registered power of attorney on 29.03.2000. In pursuant to the same, the first defendant entitled the suit property and was removing the bushes from 13½ cents of land in Survey No.993/1A1. Hence, his contention is that the plaintiffs have no right in the suit property and the suit is bad for non-joinder of necessary parties.
5. In the additional written statement filed by the first defendant, it is stated that the rectification deeds, dated 18.06.2001, do not confer any title to the plaintiffs in respect of Survey No.993/1A. The rectification deeds have been created in a fraudulent manner only to fill up the lacuna in the written statement and the suit is also not maintainable without any prayer for declaration. However, the prayer for declara
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