Sam David vs Moni - 2022 Supreme(Mad) 3782

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Mad) 3782

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N.SESHASAYEE, J.
Sam David – Appellant
Versus
Moni – Respondent
S.A(MD)Nos. 850 and 851 of 2010
Decided on : 12-08-2022

Advocates:
Advocate Appeared:
For the Appellant : Mr.K.N.Thambi
For the Respondent: Ms.J.Anandhavalli, Mrs.K.Christy Theboral

Headnote:
Civil Procedure Code, 1908 – Section 100 – Second Appeal – Confirming judgment and decree – Suit for recovery of property – First is O.S. other is O.S. separated by a decade from earlier suit – They were laid by same plaintiffs, substantially against same set of defendants. was laid for bare injunction, and second suit in O.S. was laid for declaration of title over 'A' Schedule property, and for recovery of possession of 'B' Schedule property – Held, Court appreciates assistance provided by learned Additional Government Pleader – Learned Additional Government Pleader was only required to inform revenue officials to expedite process of survey – But learned counsel on both sides submitted that learned Additional Government Pleader indeed has taken it upon herself responsibility to visit property at time when survey was made, though without warrant of Court – They also submitted that presence of learned AGP ensured that survey could be done peacefully – Now, Court treats learned Additional Government Pleader as a Commissioner appointed by this Court for efforts she had taken, and both sides required to pay a sum each to the learned Additional Government Pleader – Ordered Accordingly.

JUDGMENT :

Prayer : Second Appeal is filed under Section 100 of Code of Civil Procedure, against the judgment and decree 23.12.2009 in A.S.No.13 of 2005 on the file of the Subordinate Judge, Kuzhithurai (Camp Court) confirming the judgment and decree dated 25.08.2004 in O.S.No.304 of 1999 on the file of the I Additional District Munsif Court, Kuzhithurai.

Prayer : Second Appeal is filed under Section 100 of Code of Civil Procedure, against the judgment and decree 23.12.2009 in A.S.No.23 of 2005 on the file of the Subordinate Judge, Kuzhithurai (Camp Court) confirming the judgment and decree dated 25.08.2004 in O.S.No.528 of 1989 on the file of the I Additional District Munsif Court, Kuzhithurai.

1.1 There were two suits: The first is O.S.No.528 of 1989 and the other is O.S.No.304 of 1999, separated by a decade from the earlier suit. They were laid by the same plaintiffs, substantially against the same set of defendants. O.S.528 of 1989 was laid for bare injunction, and the second suit in O.S.304 of 1999 was laid for declaration of title over 'A' Schedule property, and for recovery of possession of 'B' Schedule property.

1.2 Both the suits came to be tried jointly and the trial Court partly decreed both the suits, the details of which would be stated later. Challenging these decrees, the plaintiffs preferred two separate first appeals in A.S.No.23 of 2005 (against the decree passed in O.S.No.528 of 1989) and A.S.No.13 of 2005 (challenging the decree passed in O.S.No.304 of 1999). Both the appeals came to be dismissed by a common judgment of the first appellate Court. Pending the first appeals, the 1st plaintiff died. Hence, the 2nd plaintiff, who is none other than the son of the 1st plaintiff, has preferred these appeals.

2.1 Before introducing the pleadings, it is necessary to introduce the suit properties. The plaintiffs claim that they are the title holders of 22.5 ares equivalent to about 55.60 cents in R.S.Nos.403/12 and 403/13 of Kollengodu Village, Vilavancode Taluk, Kanyakumari District. This property is described as the suit property in O.S.No.528 of 1989 (filed for bare injunction) and 'A' Schedule property in O.S.No.304 of 1999, the suit for recovery of property. Out of this, a small portion of the 'A' schedule property, measuring about 6 cents on north west is described as 'B' Schedule property in O.S.No.304 of 1999. This is the property in relation to which redemption is sought. Both the Courts below have decreed the suits but after excluding the 'B' Schedule property (north-western 6 cents out of 55.60 cents), and this 6 cents is the bone of contention in these appeals.

3. For narrative convenience, the parties would be referred to by their description in O.S.No.304 of 1999.

4. The Pleadings:

(a) The plaintiff's case:

? 'A' Schedule property originally belonged to a certain Nair Tarawad. It was brought to auction for default in payment of land revenue. The property, at the relevant time, was part of Old Sy.No.1100, which had a total extent of 1.61 acres.

? In the said auction, one Parameswaran Pillai purchased 1/6th share in this property vide Ext.A1, dated 27.06.1114 ME (around 1939). Subsequently, under Ext.A5, dated 19.01.1116 ME (in 1940), another Madevan Pillai purchased another 1/6th share in the said property. Thus as between Parameswaran Pillai and Madevan Pillai, they became entitled to 1/3rd of the total extent.

•?While so, both Parameswaran Pillai and Madevan Pillai sold their properties that they had purchased under Ext.A1 and Ext.A5 to certain Samuel and his brother Apollos. Samuel purchased one-half of the 1/3rd under Ext.A3, dated 24.08.1115 ME (= 09.04.1940). The sale deed in favour of Apollos is Ext.A7, dated 15.04.1119 (= 30.11.1944). According to the plaintiffs, Ext.A7 is a benami sale by Samuel that he had purchased it in the name of Apollos, and that only Samuel was enjoying the entire property covered under Ext.A3 and Ext.A7. On the demise of Samuel, the property devolved on his wife, the 1st plaintiff